December, 2010

UNITED STATES ALIEN TORTS CLAIMS ACT (ATCA), OIL CORPORATIONS AND MILITARIZED COMMERCE IN NIGERIA’S NIGER DELTA

TARABINAH, WILFRED McBARRY PG/Ph.D/06/40623

A THESIS SUBMITTED IN PARTIAL FULFILMENT OF THE REQUIREMENTS FOR THE AWARD OF DOCTOR OF PHILOSOPHY (Ph.D) IN POLITICAL SCIENCE (INTERNATIONAL RELATIONS)

DEPARTMENT OF POLITICAL SCIENCE, UNIVERSITY OF NIGERIA, NSUKKA.

SUPERVISOR: DR. KEN IFESINACHI

DECEMBER, 2010 .

CERTIFICATION PAGE

This Thesis Has Been Approved For the Department of Political Science,

University of Nigeria, Nsukka

______DR. KEN IFESINACHI PROF. OBASI IGWE SUPERVISOR HEAD OF DEPARTMENT

______PROF E. O. EZEANI PROF. BAYO OKUNADE DEAN OF FACULTY EXTERNAL EXAMINER

DEDICATION

MR and MRS M.S.K. TARABINAH

And my Brother

MR. VICTOR M. TARABINAH

iii

ACKNOWLEDGEMENTS

First and foremost I express my profound gratitude to the hearer of prayers, Jehovah

God, for granting me the ability to successfully complete this program.

To my kind hearted, hard working and indefatigable supervisor, Dr. Ken Ifesinachi.

The guidance, encouragement and the swift attention he gave to this work facilitated the completion of this study.

My heartfelt appreciation go to Fidelis Okoro, in the Department of English and

Literary Studies, University of Nigeria, Nsukka, for his physical and moral support during the course of my program.

Special thanks are due to Professor Obasi Igwe, Professor Emmanuel Ezeani, Professor

Jonah Onuoha, Dr. A. M. Okolie, and others for their scholarly and insightful contribution to my doctoral seminars which has enhanced my research skill.

To my numerous friends and colleagues that are not mention here due to want of space and my family members who have made life more meaningful to me. I hold you all dearly and remain ever yours.

TABLE OF CONTENTS

Title page ------i Certification Page ------ii Dedication ------iii Acknowledgement ------iv Table of Contents ------v List of Tables ------vii List of Figures ------ix Abstract ------x CHAPTER ONE: INTRODUCTION 1.1 Background to the Study … … … … … … … …1 1.2 Statement of Problem … … … … … … … … …7 1.3 Objective of Study … … … … … … … … …11 1.4 Significance of Study … … … … … … … … …12 1.5 Literature Review … … … … … … … … …14 1.6 Theoretical Framework … … … … … … …44 1.7 Hypotheses … … … … … … … … … …52 1.8 Research Methodology … … … … … … ... …53 CHAPTER TWO International Regulatory Mechanism and Oil Corporations in Ogoniland of Nigeria’s Niger Delta …………… ……………………………………………………………………. 61 2.1 Origin and Impact of Petroleum Hydrocarbon … … … … …. 61 2.2 Oil Exploration in Nigeria …… …… ……. …..… …. …. …. 67 2.3 Optional Jurisdiction and NGOs in the International System ….. …… ……… 77 2.4 Advocacy and Litigation … …….. … … … …. 95 CHAPTER THREE The State and the Enforcement of the Liability of Oil Corporations for Violations of International Law in the Niger Delta … …. … ….. …. … 102 3.1 Nigeria / U.S Trade and Investment Relations … … … … 102

3.2 Nigeria and U.S. Military Aid … … … .. 115 3.3 Capacity of the Nigerian government to mediate oil conflict and enforce international Law … …. …. …. …. …. … … … … 131

CHAPTER FOUR Alien Torts Claims Act and Ogoni Struggle in the Niger Delta … … … 167 4.1 Cultural Composition of Ogoniland … … … …. …. … 167 4.2 Impact of Oil Exploration in Ogoniland … … … …. … …. 168 4.3 Alien Torts Claims Act and Compensation in Ogoniland … …. …. …. 176 4.4 Genocide … … … … … … … …. … … … 183 4.5 Crime against Humanity … … … … … … … … … … 186 4.6 War Crimes … … … … … … …. …. … … … 188 4.7 Arbitrary Detention … … … … … … … … … 193 4.8 Torture, Cruel, Inhuman or Degrading Treatment … … … … … … 194 4.9 Extra Judicial Execution … … … … … … … … 200 4.10 Reconciliatory Process … … …. …. …. …. … …. …. 212 CHAPTER FIVE Summary, Conclusion and Recommendations … … … … … 214 5.1 Summary of Findings … … … … … … … 214 5.2 Conclusion … … … … … … … 219 5.3 Recommendation … … … … … … … 219 Bibliography … … … … … … .. … … … 221 Appendices … … … … … … … … …. 243

LIST OF TABLES

Table 1 Logical Data Framework 58 Table 2.1.1 OPEC and Non OPEC Super Giant Oil Field and Reserves 62 Table 2.1.2 Stages of Oil Production and Its Uses 64 Table 2.2.1 MNOCs Operating in Nigeria as at 2006 68 Table 2.2.2 Crude Oil Production Summary in BPD, April 1967 68 Table 2.2.3 NNPCs Monthly Production Profile Vs Shuts In (2008) 69 Table 2.2.4 NNPCs Monthly Production Profile Vs Shuts In (Jan/Feb, 2009) 69 Table 2.2.5 Oil Spill Incidents in Nigeria (1976-1996) 70 Table 2.2.6 Summary of Adverse Impacts of Petroleum Development 73 Table 2.2.7 Flaring of Natural Gas in Major Oil Producing countries 74 Table 2.2.8 Effect of Gas Flaring and soil and Water Acidification 76 Table 2.3.1 Profile of Active Communal & Ethnic Group in the Niger Delta 91 Table 2.3.2 Profile of Active youth Association in the Niger Delta Struggle 92 Table 2.3.3 Profile of Pan Ethnic Civil Group in the Niger Delta 93 Table 2.3.4 Profile of local environmental & civil rights groups in the Niger Delta 94 Table 2.4.1 Main Features of Selected INGO 96 Table 3.1.1 Twenty most oil dependent countries as at 2000 (% Total Export) 103 Table 3.1.2 Twenty most oil dependent countries as at 2000 (% GDP) 105 Table 3.1.3 Oil Supply and Reserves by Region, 2001 109 Table 3.1.4 U.S. Oil Dependency 110 Table 3.2.1 Chronology of U.S. Energy and Foreign Policy 118 Table 3.2.1 End States 123 Table 3.2.2 African Theater Strategic Objectives 123 Table 3.2.3 U.S. Military Aid 125 Table 3.2.4 U.S. Security Assistance Program for Nigeria (FY 1999-2002) 127 Table 3.2.5 U.S. Security Assistance Program for Nigeria (FY 2003-2006) 127 Table 3.2.6 U.S. Security Assistance Program for Nigeria (FY 2007-2010) 127 vii

Table 3.2.7 Global Exporters of Weapons in 1996- 2001 129 Table 3.3.1 Minorities and the Willinks Commission 13 2 Table 3.3.2 International standards and codes, signed, Ratified 147 And Domesticated by Nigeria Table 4.2.1 Oil Field Facilities in Ogoniland in 2003 168 Table 4.3.1 Compensation Awards in Selected Oil Related Cases 176 Table 4.9.1 Remedies under the Alien Torts Claims Act 207

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LIST OF FIGURES

Figure 2.2.1 Major Oil Spill in the world 65 Figure 3.2.2 Budget Request by Country (FY 2011) 128

ABSTRACT

The study sets out to examine the effect of the enforcement of United States Alien Torts Claims Act on human rights infringement in Ogoniland of Nigeria’s Niger Delta. The aim of the research was to provide a policy framework which could be used to halt oil conflict and to improve the governance of resource management. The theory of the Rentier State was adopted as our theoretical framework. The study relied on observation derived from documentary sources of recorded human documents such as case laws, charters, treatise, Books, Journals, internet sources, websites to international bodies and field observation. Data analysis was based on the single case pre-test-post-test quasi experimental design which was also used in controlling internal threats to validity. The study found that the enforcement of international regulatory instruments on oil corporations by international nongovernmental organizations through campaigns and court actions in the United States ensured the accountability of oil corporations which reduced the incidence of human rights infringements in Ogoniland. The study equally found that the subsisting military alliance between the Nigerian government and the U.S. Government undermine the capacity of the Nigerian State to enforce the liability of oil corporations for violations of international law. Accordingly, the study showed that the U.S. Government’s dependence on Nigeria’s oil and its military pact with the Nigerian State for oil security puts on hold Nigeria’s Government capacity to mediate oil conflict and enforce international law. It was further shown that the oil-rentier nexus underscores the uninterrupted flow of oil rents to the state as well as profit to the oil corporations which engenders oil externalities and provided the immediate context for armed conflict. The study showed that Royal Dutch Shell was complicit in the violation of international humanitarian law in Ogoniland. Subsequently, the adjudication of the Alien Torts Claims Act provided financial settlement and a Trust for community development which led to the cessation of hostility between Royal Dutch Shell and Ogoni community. The study therefore recommends the abrogation of laws that disempowers the oil bearing communities and the home state of oil corporations should ensure that victims of human rights infringement obtain access to legal remedy.

CHAPTER ONE

INTRODUCTION

1.1 Background to the Study

The globalization of law has engendered the development of international norms and institutions for the protection of human rights in our century than at any previous point in human civilization. The outcome is an international recognition that human rights ought to be honoured as a basis for human development, democracy and good governance. Subsequently the United Nations Organization (U.N.O), the International Court of Justice (I.C.J), the

International Criminal Court (I.C.C), the African Union, is all committed to the enthronement of human rights.

Paradoxically, the attainment of human rights in the less developed countries, particularly in resource rich African countries seems to be a contemporary utopia. This is borne out of the fact that the continuous outbursts of conflicts are immense and monumental, its impacts have led to the loss of about $300b within the last three decades, and it is unabated

(Volman, 2003). This study takes interest in militarized commerce as a form of human rights infringement and in doing so it seeks to focus on the Niger Delta. For instance, the killing of

80 unarmed villagers over the protestation of oil spillages in Umuechem village in Rivers State by the Nigerian security forces in 1990 is well documented (HRW, 1999:112).

Also, in response to a non violent campaign in opposition to the destruction of their environment by oil companies, the Nigerian security forces attacked and destroyed several

Ogoni villages and executed acts of extra judicial killings of human rights activists Ken Saro

Wiwa and other Ogonis in 1995 (Carew, 2002). Similarly, following a protest against SPDC over a badly malfunctioning flare in Iko, Akwa Ibom State led to the burning of fourty houses

by the Mobile police (ERA, 1998). On the 19 th of April 1999, a team of naval and army personnel attached to the Nigerian Agip company (Brass terminal) killed 8 persons who had shut down oil production facilities. Also killed were seventeen youths of Ikebiri and Olugbobiri community in 2001 by the Agip security personnel.

Also, following the Kaiama Declaration in 1998, soldiers were deployed to Kaiama. In the events that followed several persons were killed, injured and maimed and properties

(including buildings) were destroyed and looted. Federal troops also invaded Odi town of

Bayelsa State in November 1999 and completely destroyed it as a fall out of the killing of eight police officers at Odi by some of the youths (This Day, 1999; Bayelsa Voice, 1999). In the face of government denial that any abuses took place and failure to undertake any criminal or other investigation with a view to bringing those responsible to account, private individuals have brought civil suits against the government.

In February 2000, an application to enforce fundamental rights was lodged in the

Federal High Court, Port Harcourt, on behalf of the Odi community, seeking ₦1 billion (U.S.

$7.7 million) damages and other relief. The government failed to file any defense to the application or to appear in court to respond to the various applications made on behalf of the plaintiffs as the case has proceeded. In July 2002, nine women from Odi filed a suit in the

Federal High Court, Port Harcourt, seeking ₦19 million (U.S. $146,000) compensation from the federal government for rape, torture, and emotional trauma suffered during the invasion. The government filed a defense denying all the allegations (HRW, 2002:21).

In other cases people were beaten and arbitrarily detained for lengthy periods for simply attempting to raise grievance with the oil companies, for instance, the case of Egbema

in Imo state in 1999; Obagi, and Rumuobiokani, Rivers state in 1995 and in Brass, Nembe

Creek, Bayelsa state (HRW, 1999; HRW, 1995).

In November 1999, a conflict involving Choba community and Wilbros Nig. Ltd led to the destruction of properties and the raping of women by the military operatives (Ogonor,

2000). In February 1999, Human Rights Watch documented an incident in which Soldiers used

Chevron facilities (Helicopters and Boats) to launch attack in two communities in Delta state,

Opia and Ikenyan, killing at least four people and burning most of the villages to the ground, for daring to raise a protest against Chevron over environmental degradation (HRW, 1999).

Similarly, in 2005, 80 percent of houses in Odioma community in Bayelsa state were completely destroyed and seventeen people were reportedly killed and two women raped when soldiers raided the town in a failed attempt to arrest members of an armed vigilante group suspected to have killed 12 people including 4 local councilors. Members of this group were reported to have been recruited by a sub-contractor of Shell's subsidiary in Nigeria and to be responsible for security in an area where oil exploration was being conducted, despite their alleged criminal record (Amnesty International, 2005).

In January 2002 in Liama, Bayelsa state, navy personnel also responded to the seizure of boats and employees of an oil service company working for Shell, not by arresting those alleged to be responsible and handing them to the police for investigation and prosecution, but by carrying out a reprisal raid on the abductors’ village, razing dozens of homes to the ground and killing and destroying twenty to thirty houses (HRW, 2002). Similarly, in 2009, the

Nigerian security operatives (J.T.F) launched an aerial bombardment in the communities of

Kunukumah, Oporoza, Kurutie and Okerenkoko, all in Gbaramatu kingdom of Delta state; in

which thousands of innocent unarmed people were killed and several others were displaced in a campaign against militants ( Insider weekly, 2009).

This phenomenon is aptly described as militarized commerce (Forcese, 2001; Watts,

2004). In conceptualizing militarized commerce, these scholars posit that it involves the act of enlisting military personnel in company’s payroll, importing arms and providing combat infrastructure and ancillary services to the country’s armed forces attached to corporation’s facilities, to checkmate protesters. This study therefore refers to militarized commerce as the sponsoring of state coercive apparatus (military police, navy and the army) and international and local private military organizations (PMCs) by transnational oil corporations to protect oil facilities as well as the attack of local communities whose members engage in protest against environmental degradation. Amnesty International’s (2009) empirical study on Nigeria revealed that oil transnational corporations have exacerbated conflict and violated human rights for over 50 years in Nigeria’s Niger Delta. These violations culminated in violent destruction and the sacking of entire communities and villages akin to genocide.

However, Victims of human rights infringement are often unable to obtain redress as a result of the limited capacity of the domestic legal system, the privatization of the state and its dependence on foreign capital. Frynas (2001) findings showed how oil transnational corporations tie up legal cases in Nigerian courts for 10 to 15 years and how the Nigerian State

(rentier state) is biased in favour of oil interest and thus restrict legislation against oil companies.

In Jonah Gbemre v. SPDC, the plaintiffs filed a petition to stop gas flaring in the

Iwerekan community in Delta state. While the Federal High Court ruled in favour of the

plaintiffs, SPDC violated the court order and gas flaring is still subsisting in Iwerekan community.

Several cases of court disobedience by oil transnational corporations in Nigeria abound which account for human rights infringement. While, international law seeks to grapple with this obstacle, it is however, limited by its state centric nature. Accordingly, the United States of

America through its legal system has attempted to overcome this short coming through the application of the Alien Torts Claims Act.

The Alien Torts Claims Act is a section of the United States statutory law which provides that: “the District Courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States,” 1 stat. 73, 77 (1789); ATCA – 28 U.S.C§1350 (2000). This provision has enabled foreign citizens to bring civil cases to the U.S courts for egregious human rights abuses committed outside the

United States, thus elevating civil litigation to the status of universal jurisdiction. Whereby, a third party country could prosecute suspected human rights violators.

The motivation and legislative history of the Alien Torts Claim Act was to provide a judicial forum to foreign ambassadors in the United States (Shaw, 2002:1364). This can be deduced from the “Marboise affair” where a French diplomat, Franscis Barbe Marbois was attacked by a French noble, Chevalier de Longchamps in the city of Philadelphia in 1784;

Longchamps was tried and sentenced to about 2 years in jail, as well as an imposition of a fine of 100 French Crowns to the Commonwealth of Pennsylvania, under criminal charges for his violation of international law. The notoriety of the incidence triggered the U.S. congress to enact the Alien Torts Statute in the judiciary Act of 1789 (Diskin, 2005). Also, the enactment of this statute was intended to be a “badge of honour” for the young United States, indicating

that the country was ready to shoulder a perceived national duty to enforce international law as it relates to individual conduct (Burley, 1988: 475 in Shaw, 2002: 1364).

After the enactment of the statute it remained in disuse for two centuries (Castor, 1986); until it was invoked in the landmark case of Filartiga. The plaintiffs alleged a state murder of a family member. Under the Alien Torts Claims Act, the court found that multilateral treaties, domestic prohibitions and United Nations Declarations on human rights demonstrates consistent adherence to the prohibition of official torture and held that the Filartiga’ claim was properly brought under the Alien Tort Claims Act (Filartiga v. Pena-Irala). The Filartiga’s legal victory over the Paraguan state led to the first wave of over 100 litigation cases mainly against former dictators and military officials who escaped to the United States after the elimination of their regime.

The Court of Appeal’s decision in 1995 for the second circuit in kadic v. Karadzic which held that the reach of ATCA extend beyond state parties to private actors triggered the second wave of litigation targeted at transnational corporations for their complicity in egregious rights violations; notable defendants in these lawsuits include the oil corporations, Chevron

Texaco, Occidental, Royal Dutch Shell, Talisman and the mining companies Freeport-

Mcmoran, Newmont, Rio Tinto and the Southern Peru copper corporation, others are Coca-

Cola, Fresh Del Monte Produce, The Gap, Daimeler- Chrysler, Ford, Dyn Corp and Pfizer

(Diskin, 2005).

A significant ATCA case involved petition by Nigerian citizens in the Niger Delta against Royal Dutch Shell Petroleum Company. In Wiwa v. Royal Dutch Shell Petroleum

Company, the plaintiffs alleged conducts that violates rights as secured under international law and which therefore constitute actionable conduct under the Alien Torts Claims Act, with

respect to summary execution, crime against humanity, torture, cruel, inhuman and degrading treatment, arbitrary arrest and detention. The court in Wiwa v. Royal Dutch/Shell applied all the necessary ATCA mechanism and found that the plaintiffs effectively alleged human rights violations under international law which are actionable under the Alien Torts Claims Act. It is therefore, against this background that this study sets out to examine the effect of the Alien

Torts Claims Act on infringement of human rights in Ogoniland of Nigeria’s Niger Delta.

1.2 Statement of Problem

Nigeria is among the largest producer of oil in the world. Oil benefit is seen to account for about 95 percent of Nigeria’s foreign exchange earnings and over 80 percent of federal government receipts (CIA, 2010). This shows that the oil industry has brought enormous wealth to the Nigerian nation. However, Obi (1997) demonstrates that state dependence on oil, heightens its intensification and extraction, such that it leads to ecological degradation and if it is associated with social and political factors, it inevitably triggers environmental conflict.

Various dimensions of militarized commerce characterized by pervasive armed conflicts has engulfed the Niger Delta region for several years now and these conflicts have assumed triangular form, for instance oil producing communities are engaged in conflict with the oil corporations, also the communities are engaged in conflict with the Nigerian state and the regions are also interlocked in conflict with one another (Zandvliet and Pedro, 2002).

Initially, these conflicts were peaceful as communities either went to court to seek redress or embark on peaceful protest to call attention to development assistance and environmental degradation issues; however, this was met by limited response of the oil companies and worst still the Government response was the deployment of military personnel to crush popular dissent.

This is attested to by the Umuechem massacre in the East of Port Harcourt, Rivers

State, where the Nigerian security forces destroyed 495 houses and killed 80 unarmed demonstrators in October 30 th and 31 st , 1990; the Ogoni crisis, detentions and extra judicial executions of MOSOP activists by the task force and other security involvement in violent clashes between Ogonis and neighbouring ethnic groups in 1995; the genocides in Odi village in 1999, in Kaiama 1998; and Odioma in 2005, Bayelsa State (HRW, 1999; Amnesty

International, 2004); and the Gbaramatu massacre in Delta state in 2009 by the Joint Task

Force ( Insider Weekly , 2009: 20-25).

To resist the destructive military might of the state, armed confrontation was adopted by the youths as a defensive mechanism (Peterside, 2007; Cesarz, Morrison, and Cooke, 2003).

This new method also involved the kidnapping of oil companies personnel’s for ransom particularly, expatriate staff and in some cases the siphoning of crude (Ikelegbe, 2005; 2006).

Idemudia (2009) opines that unlike the early 1990’s when government had a monopoly of violence, recent development had shown that with increase in fiscal revenue resulting in government allocation, Oil Company’s spending and bunkering activities coupled with the geographic terrain, has made armed protesters more than capable of meeting governmental force with force.

Cesarz, et al (2003) asserts that such proceeds are usually used in the purchase of rocket propelled grenades, AK-47 assault rifles, machine guns, satellite phones and speed boats used to confront the state, oppose other groups and to seek political patronage. Obi (2008) noted that armed struggle between protesters and security forces led to an all out attack targeted at Shell,

Agip and Chevron leading to a shut in of 27 percent or 675,000 bpd out of Nigeria’s estimated daily production of 2.4 million bpd in 2007 alone, while the figure rose from 600,000 to 1

million barrels of oil per day in January 2008. This loss in revenue also came along with its consequences; armed soldiers and naval personnel attached to oil companies attacked communities that resembles the quelling of a rebellion, subsequently people were killed, properties destroyed, women raped, some were denied their freedom and economic activities were stagnated.

The effect of this indiscriminate attack suggests an infringement on the people’s fundamental rights (Briggs, 2002; Kemedi, 2003; Okonta, Kemedi and Watts, 2004).On the other hand, the soldiers and naval personnel also suffered significant losses. These include severe injuries, loss of lives and combat equipments ( Insider Weekly , 2009:31, 32; Newswatch ,

2009:12-21). Maier (2007) contend that “about a thousand people lose their lives annually in bloody encounters between militias, communal and ethnic conflicts”. For the nation’s security forces to record high casualty figures in peace time is alarming and grave to Nigeria’s defense industry. This is perhaps the motivating factor why the late President, Umaru Musa Yar’Adua declared an unconditional amnesty to all fighters in the region to end their campaign and embrace a peaceful dialogue.

Militarized commerce in the Niger Delta and its attendant rights violations has provoked remarkable scholarly debates geared towards discovering its trajectories and implications. Empirical literature thus posits potent theoretical models, these includes amongst others, the “political economy of war thesis,” which demonstrates that war provides an economic incentive for elites and warlords to loot the resources of their country. It highlights the role transnational corporation’s play in the logic of violence and human rights in guaranteeing a steady flow of revenue stream to warring factions, thus creating interplay between greed and grievance (Collier and Hoeffer, 1998; Berdal and Malome, 2008; Collier,

2000; Collier and Hoeffer, 2001; Bellentine and Sherman, 2003). This also has a similar coloration with the resource curse theory.

The works of Auty, (1993); Ross, (2001; 2003); Billion, (2001) and Reno, (2003) offers a robust debate on the resource – cause paradigm. This theory is anchored on the paradox of plenty versus poverty and the conflict nexus in African countries. This thesis is used in explaining why in spite of Africa’s rich endowment it still remains poor and conflict ridden.

Bayart, Ellis and Hibou, (1998); Chabal and Daloz, (1999, 2006); Reno, (2003); highlights the weakness, inconsistency and contradiction of the African state system which is articulated in their “Neo-patrimonial thesis”. Other works like Osaghae (1995); Ukeji, (2001); Ifeka, (2001);

Ikelegbe, (2005); Omeje, (2004); Peterside, (2007); Ukaogo, (2009) and others emphasizes

Nigeria’s skewed federalism which adds to the “fiscal federalism theory” and the “nested theory of conflict” which locates conflict in the nature of the system (Idemudia and Ite, 2006;

Obi, 2008; Idemudia, 2009).While other studies lean towards the context of environmental degradation caused by oil exploitation (Naanen, 1995; Okoh, 1996; Olojede, 2000; Williams,

2002; Jike, 2004; Ibeanu, 2008).

The empirical findings on violations of international law have essentially highlighted international instruments that guide the activities of oil corporations in Nigeria’s Niger Delta

(Shaughnessy, 2000; Feeney, 2002; Luvhengo, 2006); and that the problem of oil corporations and militarized commerce in the Niger Delta is tied to the linkages between oil corporations, militarism and anti-democratic politics (Eaton, 1997; Frynas, 2000; Reno, 2000). More so, emphasis is equally placed exclusively on structural systemic internal and external pressures

(Okonta, Kemedi, and Watts, 2004; Idemudia and Ite, 2006; Obi, 2008).

Arising from the foregoing is the obvious fact that there has not been adequate treatment of the enforcement of international mechanisms. Also, the effect of the military alliance between the Nigerian government and the government of the U.S on the capacity of

Nigerian government to enforce the liability of oil Corporations for human rights infringement is not yet brought into clear focus. More importantly, not much scholarly effort is focused on the implications of the U.S. Alien Torts Claims Act in addressing human rights infringements in Nigeria’s Niger Delta. Consequent upon the foregoing, attempt is made to transcend the deficiencies of the existing inquiries to address the following research questions:

(1) Do international regulatory mechanisms on human rights and NGO’s activities reduce the incidence of human rights infringement in Ogoniland of Nigeria’s Niger Delta?

(2) Does the military treaty between the Nigerian government and the government of the

United States undermine the capacity of the Nigerian government to enforce the liability of oil corporations for human rights infringements in Nigeria’s Niger Delta?

(3) Does the compensation provided by U.S. Alien Torts Claims Act reduce the pressure of opposition against the commercial activities of oil corporations in Ogoniland of Nigeria’s Niger

Delta?

1.3 Objectives of Study

The broad objective of this research work is to examine the implications of the enforcement of U.S. Alien Torts Claims Act on human rights infringement in Ogoniland of

Nigeria’s Niger Delta. The study will specifically focus on the following: The study examines whether international regulatory mechanisms on human rights and NGO activities reduce the incidence of human rights infringement in Ogoniland of Nigeria’s Niger Delta.

The study also examines whether the military treaty between the Nigerian government and the government of the United States undermine the capacity of the Nigerian government to enforce the liability of oil corporations for human rights infringement in Nigeria’s Niger Delta.

Similarly the study examines whether the compensation provided by the U.S. Alien Torts

Claims Act reduce the pressure of opposition against the commercial activities of oil corporations in Ogoniland of Nigeria’s Niger Delta.

1.4 Significance of Study

The significance of this research is aimed at satisfying a theoretical as well as a practical need. Theoretically, the findings of the study will contribute to the existing body of empirical knowledge and will help illuminate on the character of militarized commerce. It is pertinent to note that most elites are ignorant of militarized commerce as a corporate policy adopted by transnational oil corporations, thus holding tenaciously to belief and perceptions that are out of tune with reality.

Although, recent literature and civil society’s advocacy has brought an awareness of the deep connection between oil transnational corporations and militarized commerce in the

Niger Delta, which earlier works had hitherto ignored. However, most intellectual works tends towards a state centric solution; this approach leaves a gap which this study intends to bridge.

With the application of social science methodologies to legal jurisprudence theoretical issues are brought to bear on Alien Torts jurisprudence and militarized commerce in Nigeria’s Niger

Delta. We therefore anticipate that the findings of the study will fill this information gap. It will also provide scholars a context for further research on human rights and Alien Torts

Jurisprudence.

On the practical aspect, in June 2006, the United Nations Office of the Special Adviser on Africa (OSAA) convened an expert group conference on “Natural Resources and Conflict in

Africa: Transforming a peace liability into a Peace Asset” in Cairo, Egypt from 17 th to 19 th .

Significant amount of resources had thus been expended on finding solutions to conflict resources and the improvement of the governance of natural resources management in post conflict countries in Africa.

Thus the findings of the study would therefore be of immense benefit to regional

African communities like the Economic Community of West African States (ECOWAS); South

African Development Communities (SADC) and the African Union (A.U), especially its socioeconomic development framework, NEPAD, whose vision is anchored on peace and development for the African region. Similarly, the findings will provide the much needed intellectual resources for regional research institutes whose vision is to see a violent conflict free Africa that is well equipped to compete economically, socially and technologically in the global market. Also, the study will be of relevance to development agencies and nongovernmental organizations, both local and international on dealing with issues of oil conflict.

The findings of the study would also benefit the different layers of government in

Nigeria, especially, the federal government, whose intervention policies created, several development agencies. The research findings will therefore help policy makers to adopt the best policy option and operational officers to effectively implement the schemes. In addition it will help foreign governments and their agencies appreciate the need for successful collaboration in eradicating militarized commerce in African countries and the rest of the developing world so

as to achieve global peace. It will also help transnational corporations to see the need to balance profit with ethics. The findings of the work will also be of relevance to civil society.

1.5 Literature Review

This study explores Alien Torts jurisprudence and militarized commerce with a specific focus on the Nigerian government and its relationship with global oil corporations and how this relationship impacts on the Niger Delta region. In this vein, the literature review articulates the findings of scholars on the following research questions:

(1) Do international regulatory mechanisms on human rights and NGO activities reduce

the incidence of human rights infringement in Ogoniland of Nigeria’s Niger Delta?

(2) Does the military treaty between the Nigerian government and the government of the

United States undermine the capacity of the Nigerian government to enforce the liability

of oil corporations for human rights infringements in Nigeria’s Niger Delta?

(3) Does the compensation provided by the U.S. Alien Torts Claims Act reduce the

pressure of opposition against the commercial activities of oil corporations in

Ogoniland of Nigeria’s Niger Delta?

Do international regulatory mechanisms on human rights and NGO’s activities reduce the incidence of human rights infringement in Ogoniland of Nigeria’s Niger Delta?

The Niger Delta region houses a vast amount of oil and gas deposits, which accounts for the wealth of the Nigerian nation (CIA, 2010). It is her natural based resources that have attracted foreign oil corporations into the Nigerian soil. It is estimated that there are 606 oil and gas fields in the Delta, 355 onshore and 251 offshore, of which 193 were producing in 2002

(Nigeria oil Handbook and Review, 2002).This makes Nigeria, one of the largest oil producers in Africa.

Oil exploration is carried out by a joint venture arrangement between Nigeria, represented by the Nigerian National Petroleum Corporation (NNPC) and 5 other major

American and European oil corporations. Actual production of oil is carried out by; Exxon

Mobil owned by the United States, Chevron Texaco also from the United States, Royal Dutch

Shell, owned by the Netherland and United Kingdom, Agip an Italian based Oil Company and

TotalFinaElf, a French oil company (www.nigerianoil-gas.com/upstream/index.htm).

What is publicly known is that oil accounts for about 95 percent of Nigeria’s foreign exchange earnings and 80 percent of all budgetary revenues, which amounts to nearly $20 billion annually or about $54 million daily (Ibeanu, 2008:5). What is perhaps unknown is that the process by which oil is extracted and distributed deals a deadly blow to not only the ecosystem of the Niger Delta, but also its social fabric. Oil exploitation has cost the Niger Delta its environment, its fresh water, its fresh air, its agriculture, and its people’s right to subsistence and security (Eaton, 1997; Carew, 2002).

Okonta and Douglas (2001:92-94) in an empirical study noted that, “ever since commercial oil production commenced in 1958 in Oloibiri town of Bayelsa State, in the Niger

Delta, the industry is characterized with multiple oil spillages and other environmental incidents; reiterating that, drilling for oil takes four stages; preparing the drilling site, exploration drilling, production testing and transport which involves the cutting down of trees and all other vegetation which invariably means expelling and killing the animal species endemic to that habitat”. Construction of canals to improve mobility to oil fields often makes saltwater to flow into fresh water zones which kills plants, destroys drinking water and fresh

water ecological system, and apart from causing severe flooding of villages and farm lands, it increases access to new areas previously inaccessible, thus aggravating illegal logging activities (UNDP, 2006:180).

The construction of oil pipelines renders agricultural lands economically useless and unproductive. In 1996, SPDC alone had 96 oil wells connected by pipelines hooking up 6 flow stations (CLO, 1996:6). This invariably indicates land displacement and economic dislocation associated with oil production; for instance, communities in Ohaji/Egbema local government area in Imo state disclosed to Amnesty International, that pipelines associated with three oil companies covered a great deal of farmland in the area which reduced the communities farming activities (Amnesty International, 2009). Another practice associated with the oil transnational corporations is gas flaring. Gas flaring takes place 24 hours a day all year round.

Robinson (1996) noted that “gas flaring has been the most constant environmental damage because in many places it has been going on 24 hours a day for over 35 years . . . it affects plant life, pollutes the air, pollutes the surface water and as it burns; it changes to other gases which are not very safe. It also results in acid rain . . .”

The harmful effect of gas flaring is well documented by both indigenous and foreign environmental advocates, yet, Nigeria flares 75 percent of its gas, which far exceeds any other country’s permissible limit (Ashton-Jones et.al, 1998). And as Anderson (1996) pointed out,

“1000 (SCF) standard cubic feet of gas is produced with every barrels of oil on an average, which implies that producing 2.0 million barrels per day results to flaring 2.0 billion standard cubic feet (SCF) of associated gas per day.” In the year 2000 alone, 95 percent of natural gas was flared in Ogoniland, a small section of the Niger Delta, compared to 0.4 percent flared in

the whole of the United States (Khan, 1996: 162; Essential Action and Global Exchange,

2000).

A study conducted by Environmental Rights Action and the Climate Justice

Programme, on the human health effect of exposure to pollutant emissions from gas flares on the citizens of Bayelsa State in the Niger Delta revealed that there are seventeen onshore flow stations which flares gas and that exposure to emissions from gas flare such as (particulate matter) is causing at least 49 premature deaths, 4960 respiratory illness among children and

120,000 asthma attack each year (ERA/CJP, 2005:24, 25). The findings of the study also showed that gas flaring releases additional pollutants such as sulfur dioxides, dioxins, nitrogen oxides, toluene, xylene and hydrogen sulfide which cause other serious health effects that are not quantified in the analysis. It noted that the statistics is frightening, considering that gas flaring takes place in numerous flow stations in other Niger Delta communities outside Bayelsa

State (ERA/CJP, 2005:24, 25).

Apart from damaging community health and livestock the effect of gas flaring is also felt in other areas, for instance, at Utapele flow station on the Atlantic coast near Iko village in

Akwa Ibom State, a flare was sited too low so that sea water flooded the flare pipe at high tide, vaporizing the salt and shooting it over the village. Corrosion of the roofs in Iko was shown to be faster than in other areas, in 1995 it was reported that SPDC closed the flare at Utapele after environmentalist issued a report on its effect (ERA, 1995). In Ebocha, Rivers state, community members complained of black oil dust collecting in people’s homes and on clothes and food.

They claimed that the roofs of houses are subject to accelerated rusting because of acid rain associated with flares. Similar reports of the impact of gas flaring have been made by other communities (Amnesty International, 2009).

The contention by farmers that gas flaring affects their crop yield, by killing vegetation around the flared area which suppressed the growth and flowering of some plants and the reduction of agricultural products is highlighted in Salau’s findings that gas flaring results to about 100 percent loss in yield in all crops cultivated about 200 meters away from Izombe station ( a flare site), 45 percent loss for those about 600 meters away and about 10 percent loss in yield for crops about one kilometer away from the flare (Salau, 1993:19-22).

This also supports Ibaba’s (2001:32) findings that “those plantains around gas flaring areas ripe faster than usual, thereby compounding storage problems. This is true of Ogboloma,

Akenfa, Oporoma, Otuasega and Onyoma communities in Bayelsa state, Ikobi and Oben in Edo state as well as Erhoike and Uzere in Delta state”. Although, the government has announced deadlines to end gas flaring, it is still on record that in Nigeria, oil corporations flare more gas than in any other country in the world, largely due to government reluctance to impose legislation on oil corporations. Also, Okonta and Douglas (2001:97) reiterated that:

More gas is flared in the course of Shell’s operation in Nigeria than in the world where the multinational is involved in oil exploration and production activities. This is so because western oil companies operating in Nigeria find it economically expedient to flare non associated gas right there on the spot in the flow stations rather than incur the expenses of putting in place facilities to re-inject the gas back into the wells or collect it for commercial use. . . as a result the roofs of houses are severely corroded, the heat generated by the gas flares lead to reduced crop yield and the air they breathe is severely polluted leading to health problems. The constant noise and burning light is such that they no longer know the difference between day and night.

Additional effect of gas flaring in Nigeria is that it contributes to the total emission of green house gases, and why gas flaring has not abated despite the huge waste of resource and its externalities, studies attribute this to finding its root in racism (Barnett and Muller, 1974; ERA,

2005: 5). Other studies indicate that the financial penalties have been so low that they hardly constitute a deterrent (UNDP, 2006). Oil spillages also constitute a major menace characterizing oil exploration in the Niger Delta. Its effect are devastating than one could imagine. Apart from the recent cases of deliberate vandalism or oil theft, the largest bulk of oil spillages arise as a result of poor maintenance of infrastructure, equipment failure during processing at refineries and corrosion of oil pipes (Amnesty International, 2009:14, 15). The bulk of SPDC’s production facilities especially its pipelines are rusty and obsolete; while it’s

Shell Nigeria’s stated policy to replace flow lines in swampy areas every ten to fifteen years, presently there is backlog of older pipelines with high leakage frequencies, as a result of this neglect, spillage is a regular occurrence in the Niger Delta (Okonta and Douglas, 2001:92-94).

From 1982 to 1992 the company has recorded 1626000 gallons of oil which was spilt from the company’s Nigeria’ operations in 27 separate incidents; this is despite the fact that many of such spillages are not recorded (CLO, 1996:4). In the same vein, the World Bank findings showed that hydrocarbon pollution in Ogoniland water was sixty times more than US limits. This demonstrates that Shell Nigeria operates a double standard, given the fact that Shell drilled for oil in twenty-eight different countries during the same period (Cayford, 1996;

Carew, 2002).This also account for Shell’s refusal to allow independent environmental audits which is the standard practice adopted by oil transnational corporations in the industry (Carew,

2002).

UNDP (2006:181) estimated that a total of 6817 oil spills occurred between 1976 and

2001 with a loss of approximately three million barrels of oil, with approximately six percent spilled on land, 25 percent in swamps and 69 percent in offshore environment. An oil spill involving Texaco facility in January 1980 spewed at least 200000 barrels of oil (8.4 million

U.S Gallons) into the Atlantic Ocean that destroyed 340 hectares of mangroves (ERML,

1997:96). Also, on 1 st August, 2004 there was a spill at Chevron Ewan oil field near Ubale

Kerere, along the coastline in Ondo state, some communities, including the Igo, Awoye, Odun-

Oyinbo, Ubale, Kerere, Ogungbeje and Yoren, were affected. Fishing grounds were devastated.

As fishing is the main source of income, the people were compelled to demonstrate to draw public attention to their situation (Sogbon, 2005 cited in UNDP, 2006:182).

On January 12, 1998, a major spill of more than 40000 barrels of crude (1.7 million U.S

Gallons) leaked from the pipeline linking Mobil’s Idoho platform with Qua-Iboe onshore terminal in Akwa Ibom; and also a spill of 20000 barrels (840000 U.S Gallons) also occurred from Shells Jones Creek flow station on March 27, 1998 in Delta State in the brackish water of the mangrove forest destroying the entire fishing economy (Human Rights Watch, 1998).

According to HRW (1998), oil leaks are usually from high pressure pipelines and therefore, spurt out over a wide area destroying crops, artificial fish ponds used for fish farming, economic trees and other income generating assets. Even a small leak can thus wipe out a year’s food supply for a family; with wiping out income from products sold for cash, the consequence of such loss of livelihood can range from children missing school because their parents are unable to afford fees to virtual destitution.

Some major spillages are the Ebubu spill (1969/1970), the oil blow out well 11 at the

Bori oil field which affected the inhabitants of K-Dere (1970), the oil spillage at Yorla, in

August 1985, the Funiwa oil well blow out in 1980, the Jones creek spillage in 1998, the

Ogbodo spill, 2001 in Rivers state, the Rukpokwu oil spill in 2003. The case of the Ebubu oil spill, demonstrates that oil pollution also has long time effect. A study published in 1992 revealed that the impacted site has still not recovered after over twenty years of the spillage

(Obot, et al, 1992:149-156). Aside from the miseries of oil pollution, another major problem is that of inadequate compensation and the refusal or negligence in remediating the environment.

Okoko and Ibaba (1998:62) disclose that:

An oil spill which occurred in Akenfa and Ogboloma communities between September and October 1995 was not cleaned up until December of the same year. This inevitably increased the impacted area and thus created more damage to the environment. In some instance, particularly in the riverrine communities, the spilled oil is not cleaned at all by the contractors; it is left for the benevolence of the tidal waves which carry the crude oil off the river and into the mangrove forest and other creeks or river far distant from the point of spillage. Consequently, the marine lives in the affected area have been destroyed as in Bonny, Oporoma, Nembe, and Ogidigben among others.

This also corroborate the report of Amnesty International, that in 2008, there were at least 2000 sites which the government authorities’ and oil companies accept that needed to be remediated

(Amnesty International, 2009:32) Clearly, the natural environment upon which the people depend for economic survival has been destroyed by the activities of oil transnational corporations. The result is conflict between the communities and the oil companies. Though while contending that they should not be obligated to provide developmental amenities, the oil transnational’s claim to spend huge amount of money on oil community’s; for example, from a level of $300,000 in 1989,

According to Shell, the community assistance budget rose to $7.5 million in 1993 and more than $36million in 1996 and during 1997. The company claimed it provided 71 classroom blocks, thereby putting a roof over the heads of more than 12,500 children; sponsored 252 science teachers in 51 schools in rural areas which these teachers would otherwise have avoided; played a major role in providing training, organizing logistics, supplying syringes,

needles and vaccines for the immunization of more than 300,000 children against childhood disease and donated drugs to treat outbreaks of cholera in Ogoniland and in Bayelsa State

(SPDC Annual Report, 1996).

Mobil also claimed to have spent an average of $8 million annually on community development projects between 1994 and 1997 ((HRW, 1998). Chevron, also report that between 1990 and 1997, it spent approximately $28 million on community development and other assistance to its host communities as agreed to by the communities and requested of us by the people. According to Chevron, the project included ten blocks of six classrooms each, fifty- three bungalows for teachers, three science blocks and laboratories, three secondary school dormitories, five steel boat landing jetties, three town halls and civic centre’s and water projects in nine communities all in 1998 planned project (HRW,1998).

Similarly, Elf’s developmental budget on project is stated to be $4.5 to 5 million per year. While, Agip claims to have invested more than $2.5 million a year over the past ten years in its ‘Green River Project’ and to have provided infrastructural development and scholarships

(HRW, 1998). Have these projects contributed to development in the Niger Delta? Human

Rights Watch investigations revealed that these projects failed to meet the aspirations of the people as the money spent on development has been largely misspent, inappropriate projects and lack of consultation with the people to articulate their need caused by economic dislocation of production and exploration activities.

The report of the Environmental Resource Managers Limited is significant as it lists the causes of dissatisfaction amongst, which are that, the oil companies sometimes initiate and execute ill-defined projects, which may quickly be abandoned or vandalized by the people in the community, projects are overvalued to obtain kickbacks, not all the community assistance

project may get to the target communities; the projects are not economically viable, self sustaining or easily maintained, so that they break down soon after installation and commissioning; projects are initiated and executed without consultation with the benefitting community (the case where items of hospital equipment were provided whereas the community has no health institution); that contracts were sometimes awarded to opinion leaders/chiefs who collected contract fees and abandon the project sites and that they collude with contractors to falsify or certify job completion in order to share a percentage of the contract sum (ERML,

1992:228).

Similarly, Okoko (1998) opines that “there is a lack of congruence between the type of projects and problems created by exploration and production activities, misplaced projects, structural deformities in the development process of the communities, abandoned, poorly executed or malfunctioning projects.” The irony of these scenario is that the money being spent by the oil companies itself creates problem for the communities while the problems caused by the exploration activities also remained unresolved, thus deepening the problems of incessant conflicts which violates human rights occasioned by the failure of successive government to develop policies that will address the economic and social disarticulation brought by oil exploitation in the Niger Delta.

The oil prospecting industry is guided by well established international standards, such as the American Petroleum Institute (API); American society of mechanical engineering

(ASME) and the International Petroleum Industry Environmental Conservation Association

(IPIECA).The IPIECA Specifically covers regulations on oil spill response, social impact assessment and the impact of oil spills on fisheries, which has the oil transnational’s as members (Amnesty International, 2009).

Greenberger (1995) highlights President Clinton’s announcement of a set of “model business principles” translated into a voluntary code of ethics to be used by U.S based multinational companies which encourage them to respect fundamental human and labour rights. In order to ensure compliance with these standards, the Federal Government of Nigeria instituted legislative measures such as the Environmental Guidelines and Standards for the

Petroleum Industry in Nigeria (EGASPIN) revised 2002, the Petroleum Act(1969) and the oil

Pipelines Act (1956) and the recent Petroleum Industry Bill (2010).

The oil pipelines Act (1956) provides that: the holder of a permit to survey “take all reasonable steps to avoid unnecessary damages to any land entered upon and any buildings, crops or profitable trees thereon shall make compensation to the owners or occupiers for any damage done under such authority and not made good”(Section 6(3). Similarly, the Petroleum

(Drilling and Production) Regulation (1969) obliges licensees or lessees to “adopt all practicable precautions . . . to prevent the pollution of inland waters, rivers, water courses, the territorial waters of Nigeria or the high seas by oil, mud or other fluids or substances which might contaminate the water and where any such pollution occurs or has occurred, shall take prompt steps to control and if possible end it” (Section 25).

However, the Acts and regulations fail to provide for sanctions and where compensation is mentioned, it is inadequate; often failing to provide for long term collateral damages. This provides the enabling environment for serious human rights violations. In addition, the absence of effective measures aimed at disclosing information to communities regarding environmental impact assessment and financial disclosures shrouds the activities of the oil corporations in secrecy and lack of accountability (Amnesty International, 2009).

Does the military treaty between the Nigerian government and the government of the United States Undermine the capacity of the Nigerian government to enforce the liability of oil corporations for human rights Infringement in Nigeria’s Niger Delta?

A right is regarded as a special entitlement, a denial of which constitutes a double offence, against the law and against the individual (Montague, 1980). For a right to qualify as such there must be a right holder and a corresponding duty bearer. Shue (1980) aptly stated that, for a right to be fully honoured, it must involve three fundamental kinds of correlative duties. Duties to forbear from depriving right holders of the substance of their rights, duties to protect right holders against deprivation of the substance of their rights and lastly, duties to aid right holders in obtaining or regaining the substance of rights of which they are deprived.

The African Commission on Human and Peoples Rights identifies four levels of duties for a state that undertakes to adhere to a rights regime, namely, the duty to respect, protect, promote and fulfill these rights (Comm.No.155/96 (2001). An efficient, impartial and independent judiciary therefore has a sacred role in the enforcement of liability of oil corporations against human rights abuses and ensuring adequate compensation; but frequent delays often conspire to mitigate the course of justice, for instance, a case of oil spill occurrence in Peremabiri, Bayelsa State in January 1987 came to the high court in 1992 and to the Court of Appeal in 1996 (SPDC v HRH Chief GBA Tiebo V11 and four others, 1996, 4

NWLR, Part 445 p.657). Similarly, a case brought in the high court in 1985 with regard to damages suffered on a long time basis since 1972 was heard in the Court of Appeal in 1994

(SPDC v Chief George Uzoaru and three others, 1994, 9 NWLR Part 366,P.51).

A case heard in the high court in 1987, in relation to damages inflicted since 1967 was heard in the court of Appeal in 1990 and in the Supreme Court in 1994 (Elf Nigeria Ltd v.

Opere Sillo and Daniel Etsemi, 1994, 6 NWLR, Part 350 p.258). Other factors militating against judicial remedy are the “huge cost involved in accessing the Nigerian courts; technical and relevant information are controlled by the oil companies and final court decisions are indefinitely delayed (HRW, 1999). These suggest that the Nigerian judicial system lacks the capacity to provide effective remedy for violations of international law.

Also, the web between oil transnational corporations and the global arms industries provides a heuristic tool in understanding the use of armed conflict as a political and as well as an economic resource. The end of the cold war meant a recession for the global arms industries and the shadowy network tied to the arms trade. The implication meant significant loss of revenue to the home countries of arm producers which are the developed countries of Europe and America, which are also the home base of the oil transnational corporations.

To reverse this trend, oil corporations engage in covert activities in fuelling conflict in their regions of operations. Nitzan and Bichler (1999) highlight a link between increase in oil wealth and a rise in arms import in Oil Producing Export Countries (OPEC) involving the US as major supplier. This corroborate Watts (2004) argument that oil companies often operate in circumstances of (a) civil war and military insurgencies as evident in Columbia, Sudan, Aceh, and occasionally (b) interstate conflicts, as in the case of Iraq, Caspian basin, Afghanistan and

“defend” or “secure” oil operations, such as Nigeria, Kazakhstan and Sao Tome which invariably implies that oil and gas operations are defended and secured by some combination of foreign, State or private security forces.

Nzongola-Ntalaja (2003:227) shows how armed conflict in Africa provides a market for the West, as he draws a relationship between the War in the Democratic Republic of Congo

(DRC) and the “logic of plunder” which he described as the growing tendency for states, mafia groups, offshore banks and transnational mining companies to enrich themselves from the crises. In the case of Sierra Leone, mercenaries, private military company such as Executive

Outcome (EO), air transport firms such as Ibis Air, Soruss, Sky Air and Occidental were involved in the illegal shipment of arms to the rebel forces – the Revolutionary United Front of

Sierra Leone (RUF) (Musa, 1999:124). The Angolan case also showed how the activities of oil and diamond companies such as Sodian, De Beers, Chevron, Texaco, TotalFinaElf, Royal

Dutch Shell, ExxonMobil, BP, Statoil, Rangers, etc; exacerbated a civil conflict that inversely brought wealth to the transnational’s and their home countries while bringing death and miseries to the people of Angola for over three decades (Luvhengo, 2006).

Mercenaries and private military companies (PMC) are often involved in conflict ridden economies and in the exploitation of the natural resources of those countries. These organizations are closely linked with natural resource transnational’s and often times trade services in exchange for mining concessions or oil contracts. Fayemi (2000:18) points out that in the case of Angola, the government awarded a US$40 million diamond concession contract to Branch Energy, an arm of Executive Order (EO) a private military company, while the Sierra

Leonean government contract to Executive Order amounted to the tune of $50 million, involving both cash and mining concessions.

O’Brien (2000) noted that no fewer than 90 Private Military Companies operated in

Africa’s conflict regions, most especially in Angola and Sierra Leone which offered their services to the warring parties and to transnational corporations operating in the region. He further elucidated that these PMCs have the overt support of their country’s government

intelligent service. Similarly, oil corporations in corroboration with private security firms tend to create conflict in the Niger Delta through their activities.

Okonta and Douglas (2001:81) showed how four members of Shell police testified to

Project Underground, that Shell officials would give bribe and befriend villagers wherever there is an oil spill. These villagers would then instigate conflict in the villages over competing claims for oil benefit, a situation which Shell would then exploit, claiming that it would not pay any compensation since the community is divided over the issue of who gets what. The officers also revealed how their special strike force would be deployed to suppress community protest armed with automatic weapons and teargas.

Former Ogoni members of the Shell police have claimed that they were involved in deliberately creating conflict between different groups of people and intimidating and harassing protesters during the height of the MOSOP protests in 1993 and 1994 (Human Rights Watch,

1999). Apart from official government import, the inflow of arms into the Niger Delta has been through illegal arms trafficking involving racketeers and the oil corporations. Shell for instance, maintains its own private police force, imports its own arms and ammunition and also makes payment to the Nigerian military. (HRW, 1999)

Evidence from litigation, involving XM Federal Limited v Shell showed that Shell negotiated the import of weapons into the country in clear breach of an arms embargo between

1993 and 1995. According to the material evidence, Shell had sought tenders from Humanitex

Nig.ltd to acquire weapons worth US $500,000. These included 130 Beretta 9mm caliber sub machine guns, 200,000 rounds of bullets and 500 smoke hand grenades. Nigeria Inspector

General of Police approved the arms purchase under pressure from Shell managers (Frynas,

2000: 55).

In response to allegations relating to the import of weapons, Shell stated that it had in the past imported side arms on behalf of the Nigerian police for use by the “supernumerary police” who are on attachment to Shell and guard the company’s facilities. . . It stated to

Human Rights Watch, that it “cannot give an undertaking not to provide weapons in the future, as due to the deteriorating security situation in Nigeria, we may want to see the weapons currently used by the police who protect Shell people and property upgraded” (HRW,

1999:13,14).

Chevron Nigeria stated in correspondence with Human Right Watch, that it has “a running contract with some private security companies for the protection of company asset against theft and to control access to our premise. CNL does not have a running contract with any government security agency”. Mobil similarly divulged that “under the joint operations agreement and also in the interest of Mobil employees, contractors are in order to safeguard our facilities against theft and sabotage; we make efforts to provide adequate security facilities in our areas of operations. We do have a security department. Elf on its part stated that it uses landlords and community guards to secure its well heads and installation and these local guards are paid 500 percent above the national income wage (HRW, 1999:105).

The high point of these is the fabricating of a security complex which turns the Niger

Delta into a militarized zone. Ekine (2001:19) aptly stated that: “Shell and other oil companies, especially Elf and Chevron, have shown their open hostility and disregard for local communities by working hand in hand with the Nigerian military, providing them weapons, transport, logistical support and financial payments in order to commit acts of violence against people and property, in turn the military serve as a personal security force to oil workers”. The

Nigerian state in cooperation with the oil corporations’ unleashed waves of terror on the people against what it perceives as threats to oil flow.

In October, 1990 the village of Umuechem in Rivers state was completely razed by the

Mobile Police Force, destroying 495 homes and leaving at least 80 villagers dead during a demonstration for development projects from Shell (Amnesty international, 1994: 7, 8; HRW,

1999:112). The killings and brutal repression of the Ogonis in Rivers state by the Internal

Security Task Force was well documented and widely reported. The head of the Task Force,

Major Paul Okuntimo wrote a secret memo to the Rivers state military administrator on May 12

1994: “Shell operations still impossible unless ruthless military operations are undertaken for smooth economic activity to commence…” In a few weeks the task force had raided almost all the 126 Ogoni villages. The soldiers massacred, raped and looted. CLO (1996:18) and Carew

(2002) gave a graphic account:

The Nigerian security forces attacked, burned and destroyed several Ogoni villages and homes under the pretext of dislodging officials and supporters of the Movement of the Survival of Ogoni people (MOSOP). These attacks have come in response to MOSOP’s non-violent campaign in opposition to the destruction of their environment by oil companies. Some of the attacks have involved combined forces of the police, the army, the air force, and the navy, armed with armoured tanks and other sophisticated weapons. In other instances, the attacks have been conducted by unidentified gunmen, mostly at night.

The Nigerian government in essence placed its “legal and military powers . . . at the disposal of the oil companies” and allowed “ruthless military operations” against the Ogoni people (African Commission Decision, 2001). Nigeria was subsequently, suspended from the commonwealth in November,1995 following the extra-judicial killing of human rights activist

Ken Saro Wiwa and other Ogonis. The suspension however, does not in any way restrain the

Nigerian state and the oil corporations from engaging in militarized commerce, as many other communities in the Niger Delta are given the same dose of treatment. In the case of Odi, in

Bayelsa state, grenades, long and short missiles with biological reagents were used in the invasion and destruction of Odi town in 1999 (Briggs, 2002).

The consequences were a chilling record of over two thousand deaths with more missing, while thousands were forced to flee and virtually no house was left standing in Odi; added to this misfortune was the President’s command to the security forces to shoot rioters at sight. (Ibeanu, 2008:28) Also, on December 30 th 1998 following protest against oil companies by Ijaw youths over the Kaiama Declaration, thousands of army troops and navy personnel were brought into the region in response to this protest. In Yenagoa, at least seven youths were shot dead by security forces on December 30 th and another sixteen the following day in nearby communities.

Furthermore, Twelve youth leaders were detained . . . with over one hundred people shot dead in and around Kaiama, over twenty houses burnt and the community were deserted

(HRW, 1999). Similarly, disturbances in Iko, Akwa Ibom state, following protest against Shell over a badly malfunctioning flare led to the burning of fourty houses by the mobile police

(ERA, 1998). Also, in February 1999, Human Rights Watch documented an incident involving soldiers using a chevron helicopter and chevron boats to attack villagers in two communities in

Delta state, Opia and Ikenyan, killing at least four people and burning most of the villages to the ground (Hrw.org/press/1999/Feb./nig0223.htm).

In other cases people were tortured and subjected to arbitrarily detention for lengthy periods for protesting against oil companies, for instance, the case of Egbema in Imo state in

1999; Obagi, Brass, Nembe Creek and Rumuobiokani in 1995 (HRW,1999; HRW, 1995).

These clearly highlight a connection between oil corporations, militarism, armed conflicts and anti-democratic politics (Banfield, et.al, 2003; Banks and Ballard, 2004; Bannon and Collier,

2003; Singer, 2003; Banfield and Champaign, 2004; Nitzan and Bichler, 1999; HRW, 2003).

The United States as a global hegemony is well positioned to enforce the liability of oil corporations, given the fact that 90 percent of transnational companies stem from the U.S.A

(Fowler, 1995). The literature however shows that oil constitutes a “national security issue” to the United States, and she has used her hegemony to not only protect its continuous flow but has also engaged in major wars, as articulated from America’s foreign policy in the Middle

East to the Gulf of Guinea (Rowell, Marriot and Stockman, 2005; Pelletiere, 2004; Klare, 2001;

Engdahl, 2004; Mann, 2003).

Rowell (2005) Contends that America is intensifying its military operations on the

African continent, having secured agreements with 8 – 10 African nations to allow the U.S. military to utilize air fields and other suitable sites to establish “cooperative security locations” from which it can launch military strikes. He further states that America is quietly increasing its military presence in Nigeria; a clear manifestation is the increase of American weapons in the hands of the Nigerian army and navy in the Niger Delta region. This clearly, shows that the

Nigerian State is caught up in the web of international capital and with the collaboration of the

United States Government, it has not only failed in enforcing the liability of oil corporations for violations of international law but has itself acted as catalyst in armed conflict and violations of international law in the Niger Delta.

This is demonstrated in the failure of Nigerian government to investigate and punish military personnel involved in militarized commerce, it was claimed that the Nigerian government had even admitted its role in the violent operation in several memos exchanged

between officials of the SPDC and the Rivers state internal security task force during the Ogoni crisis (HRW, 1999), and also the incapacity of the Nigerian legal and administrative system to enforce international treaties on oil transnational corporations operating in Nigeria’s Niger

Delta.

The literature thus shows a link between oil corporations, militarism and antidemocratic politics (Eaton, 1997; Dommen, 1998; Mowerry, 2002; Frey, 1997; Hunter, 2002; Kinley and

Tadaki, 2004; Fowler, 1995; Shelton, 2002; Frynas, 2000; Cooper, 2002; Reno, 2000). This scholarship shows that transnational corporations promote conflict in order to sustain the global arms market. This illustrate what Nordstrom (2004) calls the “shadows of war,” which describes the multi- trillion dollars financial networks which actively promotes conflicts, yet remains invisible. This underscores the limitation of the reach of the State in enforcing violations of international law as presently constituted (Kamminga, 2004; Paul and Garred,

2000; Vazquez, 2004; Rassi, 2003; Le Billion, 2001; Juma, 2007).

Does the compensation provided by the U.S. Alien Torts Claims Act reduce the pressure of opposition against the commercial activities of oil corporations in Ogoniland of Nigeria’s Niger Delta?

Popular pressure by oil bearing communities against transnational oil corporations had met violent state repression. A veritable case in point is the Ogoni crisis and the extra judicial execution of human rights activists in November 10, 1995. In the light of state failure, international humanitarian law act to provide a forum; but scholars contend that its content is devoid of enforcement (Rehman, 2003; Janis, 1993). This is largely because international law is essentially state centric. However, the United States through its legal system has attempted to overcome this limitation through the use of the Alien Torts Claims Act. With this over two

century American law, U.S. courts have become a citadel for universal justice. This statute dates back to the judiciary Act of 1789, 1 stat. 73, 77 (1789) and the modern rendition states that “the district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States” ATCA – 28

U.S.C§1350 ( 2000). This statute thus authorizes a non U.S. resident to initiate a civil law action in U.S. federal courts based on violations of the “law of nations”. This is articulated in

Abebe – Jira v. Negewo, where the Eleventh Circuit asserts that:

Congress . . . has recognized that the Alien Torts Claims Act confers both a forum and a private right of action to aliens alleging a violation of international law. . . Accordingly, the court concludes that the Alien Torts Claims Act establishes a federal forum where courts may fashion domestic common law remedies to give effect to violations of customary international law (72 F.3d 844,847, 11 th Cir. 1996).

Similarly, In Paul v. Avril, the court held that the plain language of the Alien Torts

Claims Act and the use of the words “committed in violation” strongly implies that a well pled tort, committed in violation of the law of nations would be sufficient to give rise to a cause of action 812 F.Supp.207, 212 S.D. Fla. (1993). Also, in Iwanowa v. Ford Motors Co., the court finds that the Alien Torts Claims Act provides both subject matter jurisdiction and a private right of action for violations of the law of nations. In Eastman Kodak Co. v. Kavlin, the District

Court for the Southern District of Florida, noted that:

This statute presumably is based upon congress’ power under Article 1, section 8 to define and punish . . . offenses against the law of nations.” Traditionally, the law of nations was interpreted as those moral codes that governed the behavioural interaction between sovereign nations and those binding norms affecting individuals that fell within the jurisdiction of judges to enforce.

It stands to reason that in adjudicating ATCA cases the responsibility lies on the court to determine acts that constitute international crime for which individual liability exist at international law. In Kadic, the second circuit held that “we do not agree that the law of nations as understood in the modern era confines its reach to state action. Instead, we hold that certain forms of conduct violate the law of nations whether undertaken by those acting under the auspices of a state or only as private individuals (Kadic, 70 F.3d at 239).

Also, in Carmicheal v. United Technologies and Eastman Kodak, the court relying on the colour of law doctrine or state action, held that a conspiracy between private individuals and state actors to commit a violation of the law of nations was actionable under the Alien

Torts Claims Act. This shows that an indirect participation in state committed wrongs is sufficient enough for individual liability whether or not individual liability is available in international law. Colour of law doctrine for the Kadic court is a legal tool applied in the extension of state liability to an individual where that person acts together with state officials or with significant state aid Kadic V. Karadzic, 70 F.3d 232, 245 (2d Cir.1995).

This suggest that plaintiffs wishing to sue a transnational company for torts committed in violations of the law of nations must establish a case of negligence, complicity or joint liability with the company’s limited participation or knowledge. For instance, following world war 11, corporations that supported human rights violations were found criminally liable. These crimes as specified in Article 6 of the Nuremberg charter includes, “crimes against peace,”

“war crimes”, and “crimes against humanity”. Also, the control council law No.10, implementing the 1946 agreement, included a clause that comprise aiding and abetting liability.

The statute states that: “A person is deemed to have committed crime if he was (a) a principal; (b) was an accessory to the commission of any such crime or ordered or abetted the

same or (c) took a consenting part therein or (d) was connected with plans or enterprises involving its commission.” It was this statutory provision that gave enforcement to the United

States Military Tribunal, in the trial that involved some accused German industrialists. In

United States of America v. Friedrich Flick, the Tribunal found Flick guilty and was convicted for his knowledge and approval of his deputy’s use of Russian slave labour to increase quota outputs. Also, United States of America v. Carl Krauch, referred to as the Farben case, the

Tribunal found Carl Krauch guilty of aiding and abetting in the use of slave labour because of his knowledge that business decisions would lead to such an outcome and also because of the fact that he was a “willingly participant” in the enslavement. Similarly, United States of

America v. Alfried Felix Alwyn, Krupp Von Bohlen and Halbach, referred to as the Krupp case, the accused were found guilty in the crime of aiding and abetting in slave labour.

In the Zyklon B case, the British Military court of Hamburg also found the accused guilty based on the fact that they sold the poison gas Zyklon B to the Nazis with the knowledge that it would be used in committing genocide against the Jews and others in gas chambers.

(Diskin, 2005) This thus demonstrates that international law recognizes aiding and abetting as a crime under the law of nations. In articulating the Alien Torts Claims Act jurisprudence,

Forcese (2001:496-498) noted that:

Courts unravel the law of nations with reference to various authorities, endorsing as international law those principles that are sufficiently universal and obligatory. Court practice to date establishes that liability for individuals is possible in two circumstances. First, ATCA liability may attach where individual responsibility for breaches of international law is available at international law . . . second, courts adjudicating ATCA matters have relied on colour of law jurisprudence to evaluate instance where private actors are as proximate to state abuses as to be considered state actors liable for breaches of international law.

This shows that for corporate complicity to be established there must be an evidence showing that a private party and the state benefited from executing a wrongful act or evidence showing joint participation, which test whether state officials and private parties collaborated in executing a deprivation of constitutional rights. With these basic principles underlying the

Alien Torts Claims Act, we examine substantive Alien Torts Claims Act jurisprudence.

Dodge (2002) aptly stated that the land mark case of Filartiga v. Pena-Irala marks the beginning of the use of the modern Alien Tort Statute. Filartiga filed a suite which alleged that a Paraguan police officer, Americo Norbeto Pena-Irala, tortured his son (Joelito Filartiga) to death in violation of the law of nations. The second circuit held that the Alien Torts Claims Act provided jurisdiction over the Filartiga’s claim 630 F.2d 876 (2d Cir.1980). The Filartiga’s legal triumph over the Paraguan state propagated the ATCA jurisprudence which led to a proliferation of ATCA cases especially targeted at human rights violations. Rogge (2001) however contend that most of these cases fail to reach the merit and were dismissed on the ground of “Forum Non Conveniens.”

For instance, in Aguinda v. Texaco, the indigenous people of Ecuador filed an action against Texaco for environmental degradation as a result of Texaco‘s activities, but the court dismissed the case for forum non conveniens, with the agreement that Texaco abide to the jurisdiction of the Ecuadorian domestic court 303 F.3d 470, 480 (2d Cir.2002). Similarly, in the

Union Carbide – Bhopal case, a highly toxic chemical was spill at Union Carbide’s plant in

Bhopal India, killing thousands and permanently disabling hundreds of thousands.

A class action suit under the ATCA failed and was brought back to India, however, the

Indian Supreme Court found Union Carbide liable (Rogge, 2001); however in Dow Chemical

Co v. Alfaro, the Supreme court of Texas refused to dismiss the case on the ground of forum

non conveniens, wherein Costa Rican banana workers file a suit against Dow chemical for personal injuries incurred which includes cancer and male sterility as a result of Dow’s dispensation of chemical pesticide known to cause reproductive damage which had hitherto being ban in the United States (Rogge, 2001).

The case of Doe 1 v. Unocal Corporation is especially noteworthy in the context of our review. In this watershed case, the residents of Myanmar brought a class action suit under the

Alien Torts Claims Act alleging egregious human rights violations against them by the

Myanmar military, which Unocal had hired to provide security for its Yadana oil pipeline project. The suit alleged that Unocal, a US oil corporation aided and abetted the military’s use of forced labour, murder, rape and torture (395 F.3d at 939-42).

For their plea to be successful, the Alien Torts Claims Act would require the plaintiffs to be (1) Aliens (2) prove whether the tortuous act is a violation of the law of nations and (3) whether the tortuous act requires the private party to engage in state action for liability to attach and if so, whether the private party so engage in state action (Doe 1 v. Unocal, 2002

WL31063976 at 10); while the District Court adjudged that Unocal’s link to human rights abuses was inadequate in instituting liability under the law of nations 110 F. Supp.2d 1294

(C.D. Cal. 2000),

The Ninth Circuit Court of Appeal, with reference to the issues, declared that “torture, murder and slavery are jus cogens violations and thus violations of the law of nations. The court also acknowledged that the law of nations attribute individual liability to flagrant conduct

(such as slave trading, genocide or war crimes) without requiring state action, it therefore asserts that crimes like rape, torture and summary execution, when committed in furtherance of such flagrant crimes, do not require state action for Alien Torts Claims Act to attach. Therefore,

the court determine that the plaintiff’s claim that the military committed rapes, torture and summary executions coupled with forced labour on the pipeline project were sufficient to state a cause of action for individual liability under Alien Torts Claims Act without requiring state action (Doe 1 v. Unocal, 2002 WL31063976 at 11).

Having established that the plaintiff’s allegations of forced labour, rape, murder and torture by the Myanmar military were sufficient to state a cause of action in tort under Alien

Torts Claims Act, the court then sought to ascertain whether Unocal aided and abetted the

Myanmar military in those ATCA violations. Applying the doctrine of (1) actus reus which consist of providing practical assistance that has a substantial effect on the perpetuation of a crime and (2) the mens rea element which involves knowing or having reason to know that the principal perpetrator of the crime had the intent to commit such an offence (Doe 1 v. Unocal,

2002 WL31063976 at 13).

The court found that there was enough evidence in the record to show that, material evidence of fact exist, as to the use of forced labour in the construction of the pipeline and that Unocal Corporation, provided practical assistance by furnishing food and money to the

Myanmar military in exchange for its security and pipeline infrastructure construction, by supplying photos, surveys, and maps that guided the construction activity and by participating

in daily meetings to determine where the security was needed and where the construction would take place.

The court sensed that there was a correlation between the assistance and the perpetration of the crime of forced labour, such that the forced labour may likely not have occurred if Unocal had not hired the Myanmar military to provide security or had not showed the Myanmar military where the pipeline construction should be (Doe1 v. Unocal, 2002

WL31063976 at 15). As regard the mens rea element of the forced labour claim, the court declared that Unocal either knew or reasonably should have known that the act of providing financial resources to the Myanmar military and instructing the Myanmar military where to provide security and where the pipeline was to be build, would assist or encourage the

Myanmar military to subject the plaintiff’s to forced labour. The court having established that material fact existed with respect to Unocal’s act and with regard to whether that act satisfied that requirement of the actus reus and the mens rea elements of aiding and abetting forced labour which constituted a valid ATCA’ claim, the court reversed the District court decision to grant summary judgement in favour of Unocal with respect to forced labour.

Similarly, with respect to the plaintiff’s claim of murder, rape and torture, the court using the actus reus element of aiding and abetting (which comprise, providing assistance or encouragement that has a substantial effect on the perpetuation of the crimes of murder and rape) was satisfied by evidence showing that the Myanmar military subjected the plaintiff to murder and rape in guarding and constructing the pipeline and that Unocal provided assistance by providing money and food to the Myanmar military in exchange for its security and construction services by supplying photos, surveys and maps to guide construction and by participating in daily meetings conducted to monitor the progress of construction.

This assistance had a great impact on the likelihood of the commission of murder and rape by the Myanmar military, also the failure by Unocal officials to protest the Military’s conduct during the course of their daily meetings could serve as an act of encouragement to the

Myanmar military to use murder, rape and torture in executing its contractual obligation. Also, the application of the mens rea element of aiding and abetting to the act of murder and rape by the Myanmar military which involve reasonable knowledge that the action of Unocal will

motivate the Myanmar military in the commission of murder and rape was satisfied by material fact that Unocal knew its conduct (making payments of money, food and directing where security was to be provided and the pipeline construction) would assist or encourage the

Myanmar military to commit human rights violations. Thus Unocal officials need not have been aware that the Myanmar military intended to commit the crime of murder or rape, rather it was sufficient that Unocal officials knew or should have known the Military might commit

“one of a number of crimes.” Having established that genuine issues of material fact existed with regard to the doctrine of actus reus and mens rea element of Unocal’s aiding and abetting the Myanmar military in the commission of the crimes of forced labour, murder and rape the court reversed the District court’s granting of Unocal’s motion for summary judgement on the plaintiff’s claim of murder and rape under the ATCA (Doe 1 V. Unocal, 2002 WL31063976 at

17).

The case settled for close to $30 Million, and in addition to agreeing to pay monetary damage Unocal agreed to set up a fund to pay for improvements to the area where the abuses took place (Magnusson, 2004; and Allen et al, 2004 cited in Diskin, 2005) Unocal also put itself up for auction after the settlement. In a Similar vein, a class action suit was brought against Shell Petroleum Development Company (SPDC) in the United States under the Alien

Torts Claims Act, following the execution of Ken Saro Wiwa and the other activists.

The suit claimed that SPDC collaborated with the Nigerian Government by providing the Nigerian police with weapons, participated in security sweeps of the area and requested government troops to shoot villagers protesting the construction of a pipeline that later leaked oil (Khan, 2009). In Wiwa V. Royal Dutch Shell Petroleum Co. the plaintiffs alleged conducts that violates the rights of Jane Doe and Owens Wiwa as secured under international law and

which therefore constitute actionable conduct under the Alien Torts Claims Act, with respect to the following claims:

(1)Crimes against humanity with respect to Doe and Owens Wiwa

(2)Torture with respect to Doe,

(3)Cruel, inhuman or degrading treatment with respect to Doe, and Owens Wiwa,

(4)Violations of the right to life, liberty and security of person’s with respect to Doe,

(5)Violations of the right to peaceful assembly and association with respect to Doe and

Wiwa.

The Court in Wiwa v. Royal Dutch/Shell, applied all the necessary ATCA mechanism and acknowledged plaintiff’s claim and declared that: “Plaintiffs have adequately alleged violations of international law . . ., and have satisfied the state action requirement of Alien Torts Claims

Act, further, the court found that the plaintiff’s effectively alleged human rights violations under international law which are actionable under the Alien Torts Claims Act. On the eve of judgement Royal Dutch Shell opted for out of court settlement to the tune of $15.5 Million, on

Monday 8 th June, 2009 in a lawsuit that lasted for fourteen years

(http://wiwavshell.org/about/about-wiwa-v-shell; http://www.ccrjustice.org/).

In, Bowoto v. Chevron, the Nigerian plaintiff’s brought a case in the US Federal court under the Alien Torts Claims Act in which the plaintiffs alleged egregious human rights violations, murder and burning of villages by the Nigerian military and police personnel who acted at the behest of and with the support, cooperation and financial assistance of . . . Chevron.

(Hoppin, 2000). In May 1998, members of the Ilaje community in Ondo state of Nigeria staged a peaceful protest at Chevron’s parabe oil platform off the Nigerian coast. Chevron called in the

Nigerian military and “kill and go” police and flew them to the platform on the company’s

helicopter and conveyed some naval personnel in a boat and supervised their attack against the protesters, resulting in the death of two demonstrators and several casualties.

In 2008, a jury exonerated the defendants, the case was appealed and in September,

2010, the US Court of Appeals for the Ninth Circuit rejected the plaintiff’s appeal. A petition for rehearing has been submitted to the Ninth Circuit (www.earthrights.org/bowoto-v- chevron.htm). Chevron, is also awaiting a potential $27 billion judgement in Ecuador over its role in environmental damages while the Indonesian aborigines’ are suing Exxon Mobil over claims of torture, murder and kidnapping by security forces employed by the oil corporation

(Khan, 2009).

In order to successfully prosecute an Alien Torts Claims Act, the victims would have to demonstrate that (i) that a jus cogen violation of international law has taken place, (ii) that a human rights violations took place either in connection with forced labour, genocide or war crimes or while engaging in state action (iii) that the private individual aided and abetted the human rights violations in providing practical assistance and (iv) that the private individual knew or ought to have known that the principal perpetrator of the human rights violations had the intent to commit such an offence.

Gap in the Literature

From the review of related literature, it is clear that scholars of African politics are yet to address the crucial issues in oil conflict, especially the enforcement of international regulatory mechanisms which can hold oil transnational’s liable for violations of international law in Nigeria’s Niger Delta, and how the military alliance between the Nigerian government and the government of United States undermine the capacity of the Nigerian government to enforce the liability of oil TNCs for violations of international law. More importantly, scholars

are yet to critically examine the implications of the enforcement of Alien Torts Claims Act, on infringement of human rights in Nigeria’s Niger Delta. This study has therefore been structured to fill this lacuna in the literature.

1.6 Theoretical Framework

For an objective study and evaluation of the Alien Torts Claims Act, oil Corporations and militarized commerce in Nigeria’s Niger Delta, this study finds the “Rentier State Theory” as both relevant and heuristic in our theoretical analysis. Hossein Mahdavy (1970) an Iranian economist discovered and operationalized the concept of “rentier state theory” in relation to pre-revolutionary Iran. The concept conveys the notion of state dependence on external source of unearned income, that weakens the state’s ability to be accountable to its citizens and which inversely creates a lack of pressure from below for democratic change in the Middle East.

The rentier state theory has gain a popular currency as the most influential theoretical model in explicating the absence of democracy in resource rich third world countries. Richeter and Steiner (2007) points out that the rentier state theory has systematically linked the polity

(structure), the politics (process) and the policy (outcome) of a political system to its income base. In defining the concept, Beblawi (1987) posits a clear picture of what makes a state a rentier. He stated that:

(1) In a generalize sense there are certain levels of rent for every economy, however, a

Rentier state is one where rent situation predominates and the rents come from

abroad

(2) The rents accrue to the government directly and

(3) Only a few are engaged in the generation of this rent (wealth), the majority being

only involved in the distribution or utilization of it.

To, Wantchekon, et al (2000) a rentier state is that state that is characterized by a high dependence on external rents produced by a few economic actors. The rents are basically sourced from the exploitation of natural resources, not from production (labour), nor investment (interest) or management of risk (profit), which makes the rentier state to be autonomous in the sense that sole reliance on natural resource rent detaches and makes them less accountable to their citizens since they do not collect taxes.

Rentier state theorists thus argued that authoritarianism predominates where profit from natural resource export displaces taxes in government revenues. It is often summed in the aphorism “No representation without taxation”, and that the lack of taxation undercuts the organization of citizens based on economic interests and makes religion and cultural organization paramount (Luciani, 1990).

The rentier state theory is thus premised on 3 basic planks:

(1) That rentier states do not rely on taxation for income and thus are released from

democratic obligations.

(2) That the state spends oil revenue on placating and repressing its population.

(3) That the social structure in rentier states leaves very little room for democratic

opposition. (Sandbakkeen, 2006; Herb, 2002).

From this perspective, the scholarship on rentier theory expounds the contradictions inherent in countries identified as rentier states by establishing a correlation between resource rents and armed conflict. Skaperdas (2002); Mehlum and Moene (2002) demonstrates how the fighting efforts and the social waste of fighting increases with the size of natural resource rents.

Torvik (2002) shows a rent seeking game where more natural resource makes rent seeking more attractive when compared with production and finds that as a consequence more natural

resources in such a setting decreases overall welfare. Also, Lujala (2005) contends that onshore oil production increases the probability of civil conflict and Olsson (2006) finds that more natural resources depresses public investment in favour of military spending used in fighting off rebels.

As an analytical tool, it helps in the explication of the objective condition of the Niger

Delta region in relationship with the Nigerian state and global oil corporations. The theory characterizes the rentier states as those states whose political economy is anchored on the

“sharing of a produce or natural stock of wealth without contributing to it” (Beblawi and

Luciani, 1987). This appropriates the Nigerian situation, since the 1970s, oil has accounted for more than 90 percent of national export earnings and 80 percent of state revenue (CIA, 2010).

This clearly shows that the state and the economy have become totally dependent on external oil rents without getting involved in the actual process of oil exploitation, this is because the technology required in oil exploitation is highly complex and is only located in the industrialized West; which creates externalities.

In comparing 3 African rentier states, Algeria, Nigeria, and Libya, Sandbakken (2006) finds that some section of rentier state theory have more explanatory value than others, he argues that, in all three cases government spending on welfare and repression has dampen the pressures for democratization and that the social structure argument seems more valid for

Algeria and Nigerian than for Libya. Studies indicate that while there are international conventions which guide the practice of oil production and oil TNCs comply with these regulations in the western countries of Europe and America, which in turn promotes the economic development of these countries; these regulations are not adhered to by oil TNCs operating in Nigeria’s Niger Delta (Obi, 1997).

This suggest that oil corporations seek out countries where environmental laws are weakest, where labour unions are weakest and where there is absence of an enforceable set of international regime directed at protecting the oil environment (Obi, 1997). This posture results in armed conflict in Nigeria while inversely creating wealth for oil corporations and their home countries (Turner, 1973). For instance, oil corporations in Nigeria’s Niger Delta flares gas more than any other countries in the world where the TNC’s are involved in oil exploration and production activities (Anderson, 1998; Okonta and Douglas, 2001). Also, in the period between 1976 and 1980, there were 784 recorded cases of oil spillages in the Niger

Delta communities which accounted for the avoidable destruction of marine life and crops upon which the communities depend for livelihood (Ibeanu, 1999).

Explicating on why gas flaring and other environmental degrading practice has not subsided, the literature locates this discriminating practice as anchored in the deep roots of environmental racism (Barnett and Muller, 1974; ERA, 2005). This provides the immediate context for armed conflicts whereby the oil bearing communities have to save their environment against vulnerability through activism while on the other hand, the “oil – rentier” nexus underscore the uninterrupted flow of oil rents to the state and profit to the oil corporations which must be sustain by the “oil-state relations”.

So in response the oil corporations employ the state security apparatus in brutally suppressing any form of opposition. Ironically, while the oil corporations have a right to protect their infrastructures, the use of militarized commerce engenders the violations of international laws of armed conflicts which intersect the provisions of the US Alien Torts Claims Act. The

Alien Torts Claims Act thus provide an adequate venue whereby victims of human rights violations could sought legal remedy in US district court for a tort only, committed in

violations of the law of nations or a treaty of the United States. The conflicts generated by “oil- rentier nexus” which started as a localized conflict over environmental hazards, land seizure without adequate compensation and militarized commerce in the Niger Delta has engendered an international response, a response brought about by the exigencies of the global democratic movement that has stimulated and sustained the struggle for oil minority rights. (Obi, 1997)

The pressures from the United Nations organizations and international civil society which is expressed through the advocacy effort of international nongovernmental organizations forces the transnational oil corporations to accept that the situation required serious attention.

This in turn demonstrates that the impediments to enforcement of the legal accountability of oil corporations for violations of international law can be overcome by the effective monitoring of

International regulatory mechanisms by international NGOs. The “rentier state theory” highlights a nexus between the state and antidemocratic politics.

This reverberates in Nigerian politics whereby the Nigerian State is unable to mediate armed conflict in Nigeria, and most especially in the Niger Delta region, because the state is part and parcel of the conflict (HRW, 1999; Ibeanu, 1999; Ibaba, 2001; Nnoli, 2003; 2003;

Amnesty International, 2009; Mehler, 2010). Although, Ayoob (1995) contends that state violence is a characteristic factor in the painful process of state making. However, Gurr, identifies “dependence on foreign capital “as a variable, while the “rentier state” theorists posit that state dependency on oil rents results in undemocratic practice and state repression (Herb,

2002; Sandbakken, 2006).

This has a significant bearing on the Nigerian state, as Berham (1970:7-8) puts it:

The host government is caught in a love - hate syndrome. It wants the contributions to wealth and economic growth that the multinational enterprise can provide, because they add to its

power within the country as well as internationally. At the same time, it dislikes and fears the result; the incursion on national sovereignty and technological independence. The host government finds multinational enterprises difficult to live with, but so long as it seeks to increase national power equally unpleasant to live without. It appears to the host government that a trade-off may be required between sovereignty and greater wealth.

This trade-off is shown in the incapacity of the Nigerian state to enforce the liability of oil corporations for violations of international law in Nigeria’s Niger Delta; thus Ibeanu (2002:1-3) succinctly declared that:

International forces expressed in the likes of Shell, Chevron, Mobil, the New York stock exchange and policy makers in Washington have fueled the rape of the Niger Delta. The consequence of these lasting paradoxes is a peculiar fusion of hope and despair, enthusiasm and cynism among the people of the Niger Delta in their dealing with the Nigerian state and globalized petro business.

This suggests that Nigeria and United States alliance tends to undermine the Nigeria’s government capacity to enforce the liability of oil corporations for violations of international law.

International humanitarian rights law provides that people whose rights are violated should have access to effective remedy, which includes: restitution, measures to restore the victim to the original situation; compensation for economically assessable damage; rehabilitation; satisfaction, which should include: effective measures aimed at the verification of the facts and full and public disclosure of the truth, judicial and administrative sanctions against persons liable for the violations and guarantees of non-repetition. Under Nigerian law and regulations, the following processes are required to deal with oil pollution or environmental

damage: clean-up of areas affected by oil spills; remediation of oil pollution impacted sites and payment of compensation, for damages (Amnesty International, 2009).

According to the Environmental Guidelines and Standards for the Petroleum Industry in

Nigeria, issued by the Department of Petroleum Resources (DPR), clean-up should commence within 24 hours of the occurrence of the spill. These government guidelines also stipulate that for all waters “there shall be no visible sheen after the first 30 days of the occurrence of the spill no matter the extent of the spill (EGASPIN, 2002). However, Amnesty International

(2009) found numerous violations of these regulations. Also, following clean-up, the polluter

(companies) is required to remediate the site (EGASPIN, 2002), which means returning it as far as possible to its original state. Amnesty International also found evidence of both past and current failures in relation to remediation of contaminated land and water.

In Nigeria, the legal basis for oil spill compensation can be found in the Nigerian

Constitution (Constitution of the Federal Republic of Nigeria, 1978) and a few other enactments which are the Land Use Act 1978, the Oil Pipelines Act and the Petroleum Drilling and Production Regulation 1969. The Constitution provides that compensation should be paid for damage to buildings, economic trees or crops by any person who surveys, digs or lays pipes for the supply and distribution of energy and fuel. The Land Use Act provides that land acquired for the purpose of mining, oil pipelines or any incidental purpose must be compensated under the Minerals Act, the Mineral Oils Act or any legislation replacing them.

The Oil Pipelines Act provides that compensation shall be paid to any person suffering damage as a result of the exercise of the rights conferred by the license or a leakage from the pipeline or an ancillary installation. The Petroleum Drilling and Production Regulation 1969 provide that an operator who unreasonably interferes with fishing rights shall pay adequate

compensation to the owner of such fishing rights. It can be inferred that oil spill on fish farms is interference with fishing rights. Hence the regulation can be relied on if there is a spill on a fish farm (Adewale, 1989). In the Niger Delta compensation for oil pollution has generally been narrowly prescribed primarily in terms of buildings, crops or profitable trees, loss of fishing rights and loss of value of land. The compensation regime fails to address long-term damages or injury to health and significant communal natural resources (Amnesty International, 2009).

While, many communities and individuals in the Niger Delta have sought redress in the

Nigerian courts, mostly to seek financial compensation for damage caused as a result of oil operations – often oil spill damage, Frynas (1999) indicates that many plaintiffs often encounter significant obstacle in accessing courts, largely because the courts may be biased in favour of oil companies and that there may be a bias in Nigeria’s statute law in favour of oil companies.

Frynas (1999:150) further assert that:

The scope for law-making by Nigerian judges is also limited because they have to apply English Common Law, which ties judicial decisions to the pattern of development in the British Commonwealth. By relying on foreign legal precedents, Nigerian courts may sometimes be prevented from fully addressing specific local issues. English legal traditions, including strict standards of scientific evidence or statutes of limitation, decrease the chances of success for potential litigants in oil- related cases. Even if a plaintiff is able to win a lawsuit, litigation can only address the damage suffered by a specific litigant but not the impact of oil operations on the oil-producing areas as a whole. Since courts are reluctant to make use of injunctions against oil companies, they are unlikely to be able to compel companies to reduce the adverse impact of oil operation

This stands to reason that oil litigation in the Niger Delta revolve mainly around oil spills. The

U.S. Alien Torts Claims Act of 1789 provides jurisdiction over customary international law; so in

Wiwa v. Royal Dutch Shell, the Nigerian plaintiffs invoked the Alien Torts statute and alleged conducts that infringe the rights of Wiwa , et al as secured under customary international law in

respect to; crimes against humanity with respect to Doe and Owens Wiwa; torture with respect to

Doe; cruel, inhuman or degrading treatment with respect to Doe and Owens Wiwa; violations of the right to life, liberty and security of person’s with respect to Doe, violations of the right to peaceful assembly and association with respect to Doe and Wiwa. The Second Circuit found the plaintiff’s claim to be adequate and appropriate settlement was made (wiwavshell.org/about/about- wiwa-v-shell; www.ccrjustice.org). This settlement had a far reaching effect on Ogoniland, which suggest that the compensation provided by the U.S Alien Torts Claims Act reduces the pressure of opposition against the commercial activities of oil corporations in Ogoniland. Richeter and Steiner

(2007) credits the “rentier state theory”, as one of the rare example where a conceptual approach originating in the Third World studies has been utilized by a general social science literature.

1.7 Hypotheses

This study unfolds from testing the following hypotheses:

(1) International regulatory mechanisms on human rights and NGOs activities tend

to reduce the incidence of human rights infringement in Ogoniland of Nigeria’s

Niger Delta.

(2) Nigeria/U.S. government military treaty tends to undermine the Nigeria’s

government capacity to enforce the liability of oil corporations for human rights

infringement in Nigeria’s Niger Delta.

(3) The compensation provided by the US Alien Torts Claims Act tends to reduce

the pressure of opposition against the commercial activities of oil corporations

in Ogoniland of Nigeria’s Niger Delta.

1.8 Research Methodology

Method of Data Collection

This study adopted the simple timescale categorization method. In this method,

‘primary sources’ consist only of evidence that was actually part of or produced by the event in question and intended for internal or restricted circulation only; ‘secondary sources’ include material circulated at the time or soon after and that was available to the public at the time of event in question; ‘tertiary sources’ consist of all later work in the public domain offering a reconstruction (Burnham, Lutz, Grant and Henry, 2008: 187).

The primary sources in this work are made up of case law; treatise and charter while the secondary sources’ are government publications and gazettes, international organization and nongovernmental organization’s publications, magazines and newspapers and tertiary sources include commentaries, explanation, elucidation which writers have done preserved and supplied second hand in books, academic journals, unpublished theses and electronic media files such as the internet and sound recordings

Research Design

This research design of this study is based on ex-post facto analysis of documentary evidence. Ex- post facto or after - the – fact research design is based on the examination of the dependent and independent variable after the event have taken place and the data already in existence. Kerlinger (1964:360) thus defines ex post facto research as:

That research in which the independent variable or variables have already occurred and in which the researcher starts with the observation of a dependent variable or variables. He then studies the independent variables in retrospect for their possible relations to, and effect on the dependent variable or variables.

Ary, Jacobs and Razavieh (1972:264) posits that the basic purpose of ex post facto research is to discover or establish causal or functional relationship among variables. The procedures involved in conducting an ex post facto research were set forth by Isaac and

Michael (1971:23) and they include:

1. Define the problem. 2. Survey the literature. 3. State the hypotheses. 4. List the assumption upon which the hypotheses and procedure will be based. 5. Design the approach A. Select appropriate subjects and source materials B. Select or construct techniques for collecting data C. Establishing categories for classifying data that is ambiguous, appropriate for the Purpose of the study and capable of bringing out significant likeness or relationship 6. Validate the data gathering technique. 7. Describe, analyze and interpret the findings in a clear precise term.

Sukhia, Metrotra and Metrotra (1966:215) listed three important aspect of the causal-

Comparative method in regard to its treatment of data.

1. Gathering the data on factors invariably present in cases where the given result occurs and discarding of those elements which are not universally present. 2. Gathering of data on factors invariably present in cases where the given effects does not occur and 3. Comparing the two sets of data or in effect subtracting one from the other to get at the causes responsible for the occurrence or otherwise of the effect.

The ‘rentier state theory’ adopted in this study reinforces the ex post facto design. The ex post facto or single case design assumes the form of an experimental design where an existing case is observed for some time in order to study or evaluate it. The single case design:

R B1 B2 B3 X A1 A2 A3

There is no control and variation group in this design. There are series of ‘before’ observation and one case (subject) and series of ‘after’ observations. Using the rentier state theory; the over reliance or total dependence on external oil rents, the policies adopted by the oil partnership and the method of capital accumulation in Nigeria are used as units of analysis to generate data to test our hypotheses. A randomized selection of series of ‘Before’ and ‘After’ observations of the orientation of Nigeria’s economic policies before and after the discovery of the oil economy are used to establish the authenticity of the result obtained. The analytical routines involved in testing rentier theory based on ex post facto analysis of the independent variable (X) and the dependent variable (Y) is based on concomitant variation. This is to demonstrate that (X) is the factor that determines (Y). This also legitimately infers that (X) does or does not enter into the determination of (Y). This infers that whenever (X) occurs there is likelihood that (Y) will follow at same time later.

In testing Hypothesis (1) which states that: International regulatory mechanisms on human rights and NGOs activities tend to reduce the incidence of human rights infringement in

Ogoniland of Nigeria’s Niger Delta. We see “international regulatory mechanism on human rights and NGO activities” as (X) and “reduce incidence of human rights infringement” as (Y).

The empirical referents of (X) are INGOs advocacy and INGOs litigation. The empirical referent of (Y) is optional jurisdiction. The documentary evidence in this study show that the

enforcement of international regulatory instruments on oil corporations by international nongovernmental organizations through campaigns and court actions in the United States ensured the accountability of oil corporations for human rights infringements in the oil community of Ogoniland in Nigeria’s Niger Delta.

In hypothesis (2) we see the “Nigeria/U.S. government military treaty” as (X) and the

“Nigeria government capacity to enforce the liability of oil corporations for violations of international law in Nigeria’s Niger Delta” as (Y). The empirical referents of (Y) are the incapacity to mediate oil conflict and the incapacity to enforce international law. The empirical referents of (X) are U.S. trade and investment in Nigeria and U.S. military aid to Nigeria. The documentary evidence available show that the United States government dependence on

Nigeria’s oil and the U.S. policy of increase military assistance to Nigeria in order to secure the uninterrupted supply of oil promotes societal disengagement by weakening the state and thus puts on hold the Nigeria’s government capacity to mediate oil conflict as well as the inability to ensure the compliance of oil corporations to international law.

In hypothesis (3) we see “the compensation provided by U.S. ATCA” as (X) and

“reduce pressure of opposition against the commercial activities of oil corporations” as (Y).

The empirical referents of (X) are financial award and establishment of Trust Fund. The empirical referent of (Y) is the cessation of attack on oil infrastructure. The documentary data show that Royal Dutch Shell in collaboration with the Nigerian government committed egregious acts of human rights infringement against Ogoni community. The decedent families brought a class action suit against Royal Dutch Shell for complicity under the Alien Torts

Claims Act. The court found the suit to be adequate and settlement was reached by awarding

monetary compensation and the provision of a trust for community development. This provision had a far reaching effect on Ogoniland which led to the cessation of hostility.

Method of Data Analysis

Qualitative descriptive analysis was used to analyze the data with the application of single case pre-test – post- test quasi experimental design. This method assumes the form of an experimental design where an existing case is observed for some time in order to examine its effect. Statistical tables guided by the rentier state theory were used. Internal and external threats to validity were controlled with the logic of the single case pre-test and post -test design.

The method of data analysis is contained in the logical data table presented below:

Table 1.1 Logical Data Framework (LDF)

RESEARCH HYPOTHESIS VARIABLES MAIN DATA SOURCES METHOD OF DATA METHOD OF DATA QUESTIONS INDICATORS COLLECTION ANALYSIS

1) Do international International (X) NGOs Advocacy. Treatise. Observation derived from Theoretical framework of regulatory regulatory INDEPENDENT Case law. Documentary sources of recorded the Rentier State Theory. Mechanism on mechanism on VARIABLE NGOs Library Texts. human documents such as Books, Ex-post facto Design, human rights and human rights International Litigations. Journals. Journals, reports, Internet sources, Statistical Tables, NGOs activities and NGOs regulatory Books. websites to international bodies Figures, reduce the activities tends mechanisms on and field observation Classification and incidence of human to reduce the human rights and Qualitative Descriptive rights infringement incidence of NGOs activities. Analysis. in Ogoniland of human rights Nigeria’s Niger infringement in Delta? Ogoniland of Nigeria’s Niger Delta. (Y) Case law. Observation derived from Theoretical framework of DEPENDENT Library texts. Documentary sources of recorded the Rentier State Theory. VARIABLES Optional Books. human documents such as Books, Ex-post facto Design, Reduce incidence of jurisdiction Journals. Journals, reports, Internet sources, Statistical human rights Magazines. websites to international bodies Tables, infringement in Newspapers. and field observation Figures. Ogoniland of Classification and Nigeria’s Niger Qualitative Descriptive Delta. Analysis. (2) Does the Nigeria/U.S. (X) Observation derived from Theoretical framework of military treaty Government INDEPENDENT U.S. Trade & Library Text, Documentary sources of recorded the Rentier State Theory. between the military treaty VARIABLE investment in Journals, human documents such as Books, Ex-post facto Design, Nigerian tends to Nigeria. Books, Journals, reports, Internet sources, Statistical Tables, government and undermine the Nigeria/U.S Magazines, websites to international bodies figures, the US Nigeria’s Government U.S Military Policy Papers, and field observation Classification and Government Government military treaty Aid. Speeches. Qualitative Descriptive undermine the capacity to Analysis. capacity of enforce the Nigeria’s liability of Oil government to Corporations for enforce the liability violations of of Oil Corporations international law for violations of 58

international law in Nigeria’s Niger Delta? (Y) DEPENDENT Incapacity to Library Text, Observation derived from Theoretical framework of VARIABLE enforce Journals Documentary sources of recorded the Rentier State Theory. Nigeria’s international Books, human documents such as Books, Ex-post facto Design, Government laws; Magazines, Journals, reports, Internet sources, Statistical Tables. Figures. capacity to enforce Newspapers, websites to international bodies Classification and the liability of Oil Incapacity to Policy Papers, and field observation Qualitative Descriptive Corporations for mediate oil Speeches Analysis violations of conflicts. international law 3) Does the remedy The remedy (X) Monetary Award. Case law Observation derived from Theoretical Framework of provided by the US provided by the INDEPENDENT Library texts Documentary sources of recorded the Rentier State theory Alien Torts Claims US ATCA tends VARIABLE Provision of Books human documents such as Books, Ex-Post facto Design Act reduce the to ease the Compensation Trust Fund. Journals, Journals, reports, Internet sources, Tables. pressure of pressure of provided by ATCA Magazines. websites to international bodies Figures. opposition against opposition and field observation Classifications and the commercial against the Qualitative Descriptive activities of oil commercial Analysis corporations in activities of oil Ogoniland of corporations in Nigeria’s Niger Ogoniland of Delta? Nigeria’s Niger Delta. (Y) Case law Observation derived from Theoretical Framework DEPENDENT Cessation of Library texts Documentary sources of of the Rentier State VARIABLE destruction of Books recorded human documents theory Reduce pressure oil corporation’s Journals, such as Books, Journals, Ex-Post facto Design of opposition properties. magazines reports, Internet sources, Tables. against the Newspapers websites to international bodies Figures. commercial and field observation Classifications and activities of oil Qualitative Descriptive corporations. Analysis

Conclusion

The Niger Delta is replete with conflicts and human rights infringement involving oil corporations with the participation of State agents. The literature highlights international instruments that guide the activities of oil corporations and the relationship between oil corporations, militarism and antidemocratic politics. The study however, sets out to ascertain the implications of the enforcement of the United States Alien Torts Claims Act on human rights infringement in Ogoniland.

Specifically, the objectives include determining whether international regulatory mechanisms on human rights and NGO activities reduce the incidence of human rights infringement in Ogoniland. Investigating whether the military treaty between the Nigerian government and the government of the United States undermine the capacity of the Nigerian government to enforce the liability of oil corporations for human rights infringement in the

Niger Delta, and whether the compensation provided by the U.S. Alien Torts Claims Act reduce the pressure of opposition against the commercial activities of oil corporations in

Ogoniland of Nigeria’s Niger Delta. The aim is to advance a policy framework which could be used to halt oil conflict and to improve the governance of resource management which will in turn end human rights infringement and promote sustainable development in Nigeria’s Niger

Delta. The study relied on the use of statistical tables guided by the theory of the rentier state.

CHAPTER TWO

INTERNATIONAL REGULATORY MECHANISM AND OIL CORPORATIONS IN OGONILAND OF NIGERIA’S NIGER DELTA 2.1 Origin and Environmental Impact of Petroleum Hydrocarbon The term ‘oil’ is used synonymously with ‘petroleum’ to describe crude oil that emanates from below the ground. There are two major contending theories which elucidate on the formation of petroleum. The biogenic theory holds that biological debris buried in sediments decays into oil and natural gas in the long cause of time and that this petroleum then becomes concentrated in the pore space of sedimentary rocks in the uppermost layers of the

(earth’s) crust. This process then produces petroleum, whose main components are hydrocarbons, which comprises hydrogen and carbon (Larson, 2003:4). On the other hand, the abiogenic theory contends that hydrocarbons were a component of the material that formed the earth, through accretion of solids some 4.5 billion years ago. According to this theory, the elements of petroleum have been deep in the earth since the earth’s formation (Larson, 2003:

4).

The history of oil discovery actually dates back to the United States, where the search to discover a superior kind of illuminant motivated some individuals to seek for oil, their reasoning was based on the need to produce abundant kerosene for the market which will require drilling for oil, so in 1859, Edwin Drake became the first to successfully drill a 70 feet well to discover oil in the field of Titusville, Pennsylvania. Thereafter in 1870, John

Rockefeller and a few associates incorporated the Standard Oil Company which monopolized the kerosene market until competitors emerged, especially in the Russian oil industry. A major rival was Marcus Samuel, a founder of what is today known as the Royal Dutch/Shell Group.

(Larson, 2003: 2)

With the passage of time more oil fields were discovered which later reinforced the supremacy of the global oil market. An important factor is not only the number of oil field discovered but their size. Oil fields that contain at least five billion barrels of recoverable oil are the super giants which are the largest in the classification, while the second largest ranging from five hundred million to five billion barrels are called the world class giants (Larson,

2003:2). The table below shows the countries that have giant oil fields.

Table 2.1.1 Showing OPEC and Non OPEC with One or More Super Giant fields and Reserves as at December 31 st , 2002

S/N COUNTRIES OPEC NON-OPEC QTY. (Billions OF MEMBER MEMBER BARRELS) 1. Saudi Arabia Yes _ 332.70 2. United States of America - Yes 216.50 3. Russia - Yes 192.60 4. Iran Yes - 135.90 5. Venezuela Yes - 130.60 6. Kuwait Yes - 125.10 7. Iraq Yes - 122.80 8. United Arab Emirates Yes - 113.30 9. Mexico - Yes 70.90 10. China - Yes 42.90 11. Libya Yes - 41.90 12. Nigeria Yes - 33.40 13. Canada - Yes 21.20 14. Indonesia Yes - 21.00 15. Kazakhstan - Yes 20.50 16. Algeria Yes - 18.30 17. Norway Yes - 17.60 18. United Kingdom - Yes 16.90 Source: Larson, M.H. (2003: 7) Oil: Will it Ever Run out? Awake , November, 8

The table shows that that the largest numbers of super giant oil fields are grouped in the

Arabian- Iranian sedimentary basin, which comprises the area in and around the Persian Gulf.

There are also oil reserve in lands such as Venezuela, Indonesia, Nigeria and others; but there are only two places that are at present time known to contain the vast reserves needed for the industrial nations of the West and Asia. The first of these areas that has the world’s largest oil pools are the Arab nations and the second is the Soviet Union, which houses approximately 75

to 80 percent of all oil reserves on earth. The United States also have large reserve but it seems not to be adequate for its need which consequently places it among oil dependent countries. Oil is pivotal to the economy of industrial nations; it is the main source of energy that fuels automobiles, air planes and electric generators. It lubricates the machines that are so much a part of the industrial age. It is used in a multitude of products (greases, waxes, asphalts, and the items made from petrol chemicals-air craft, automobiles, boats, adhesives, paint, polyester cloths, sneakers, toys, aspirin, deodorant, makeup, recording discs, computers, TVs, telephones.

Every day many people use a number of the over 4000 oil derived products or items that shape modern life (Larson, 2003:11).

For this reasons oil is not just a commodity; it is a strategic asset (Watts, 2004:12).

Larson (1974:17) aptly stated that “oil is a key to global power, whoever controls the oil in today’s world controls a key to global strategic power.” The nations that own the oil can influence and even dominate the policies of nations that need oil but do not have enough of it.

Oil has also been used between nations for political leverage, through wars, embargoes and sanctions. For instance, by the end of 1940, when war between Romania and Hungary appear imminent, Nazi dictator Adolf Hitler was quick to act as arbitrator with the intention of securing Romania’s oil. Oil was also a significant motivating force in the Iraq invasion of

Kuwait in 1990 and the subsequent inclusion of other nations in the counter conflict (Larson,

2003:11). The process of making oil available for industrial and domestic use undergoes four stages. This is depicted in the table below.

Table 2.1.2 Stages of Oil Production and its Uses

S/N EXPLORATION ACTIVITIES .1 The Use Of Satellite: The global positioning system provides accurate signals used. for surveying: ∑ GEOPHONES ∑ VIBRATOR TRUCK ∑ HYDROPHONES ∑ SEISMIC VESSEL Seismic surveying, one method used records the below-ground reflections of artificially generated sound waves. 2. EXTRACTION ACTIVITIES ∑ INLAND WELLS ∑ OFFSHORE PLATFORM ∑ UNDERWATER WELL Extraction method includes the use of inland, offshore and underwater oil wells. In underwater oil well- remotely operated submarines are used to construct production facilities on the sea bottom; while in horizontal drilling- motors controlled remotely by an engineer turn the drill bit and sensors detect the rock properties. 3 TRANSPORTING ∑ PIPELINES ∑ TANKERS Pipelines above the ground, below the ground and under the sea transport the oil. Other methods of transport include tankers, barges and rail cars 4 REFINING ACTIVITIES ∑ REFINERY: Crude oil is heated, distilled and broken up into fractions that can be used to make everyday products. ∑ DISTILLATION TOWER: When sticky, dark crude oil is heated in the furnace, the hydrocarbons turn into gases. The gases condense back into its parts, or fractions. 68°F — Refinery Gases: These include methane, ethane, propane and butane {20°C} 70°–160°F — Gasoline: Used as automobile fuel and as a raw material for plastics {20°–70°C} 160°–320°F — Naphtha: Can be made into plastics, automobile fuel and other {70°–160°C} chemicals 320°– 480°F — Kerosene: made into jet fuel and stove oil {160°–250°C} 480°– 660°F— Gas Oil: made into diesel and furnace fuels {250°–350°C} 750° — Residue: further processed into refinery fuels, heavy fuel oil, candle Furnace wax, grease and asphalt. CATALYTIC CRACKER: The hydrocarbons are heated by steam and mixed with the hot catalyst of powdered alumina-silica gel. This process cracks, or breaks up the hydrocarbons into smaller and more useful molecules. Powdered catalyst mixes with the hydrocarbon in steam and produces ethanol, plastic and gasoline additives. Ethanol is a solvent used in the manufacturing of paints, cosmetics, perfumes, soap and dyes. Gasoline additives prevent gas from igniting too quickly in the engine thus improving its performance. Source: Larson, M.H. (2003:4, 5) Oil: Will it ever run out? Awake , November, 8

The table describes the stages involved in producing petroleum commodity. The four basic stages involve complex sophisticated technology which starts from the exploratory process of searching or discovering the existence of crude oil and the methods applied in excavating the commodity, transportation and the process of transforming the crude into a usable product.

The oil economy however has a peculiar externality associated with the process of undergoing the above stages; there are cases of its release into the environment. The term used in describing such occurrences is “oil spill”. It is the emission of a liquid petroleum hydrocarbon into the environment due to human activity and constitutes a major form of pollution. Oil spill could occur at both onshore and offshore. It includes releases of crude oil from tankers, offshore platforms, drilling rigs and wells, as well as spills of refined petroleum products (such as gasoline, diesel) and their by-products and heavier fuels used by large ships such as bunker fuel or the spill of any oily refuse or waste oil and can take several months or years to clean up. Several empirical findings indicate that oil spills impacts negatively on the environment. The figure shows the global scale of oil spillages.

Figure 2.1.1 display the major oil spills in the world . Oil spills of over 100,000 tons or 30 million US gallons, ordered by tons (a) Spill / *Tons of Location Date Barrels US Gallons Tanker crude oil January, 1991 - Kuwaiti oil 136,000,000- 1,000,000,000- 42,000,000,000- Kuwait November, fires [b] 205,000,000 1,500,000,000 63,000,000,000 1991 January, 1991 - Kuwaiti oil 3,409,000- 25,000,000- 1,050,000,000- Kuwait November, lakes [c] 6,818,000 50,000,000 2,100,000,000 1991 United States , May 14, 1910 – Lakeview Kern County , September, 1,200,000 9,000,000 378,000,000 Gusher California 1911 January 19, Gulf War oil 818,000– 6,000,000– 252,000,000– Iraq , Persian Gulf 1991 - January spill [d] 1,091,000 8,000,000 336,000,000 and Kuwait 28, 1991 Deepwater United States , Gulf April 20, 2010 560,000- 4,100,000- 172,000,000- 65

Horizon of Mexico – July 15, 2010 585,000 4,300,000 180,000,000 Mexico , Gulf of June 3, 1979 – 454,000– 3,329,000– 139,818,000– Ixtoc I Mexico March 23, 1980 480,000 3,520,000 147,840,000 Atlantic Empress / Trinidad and July 19, 1979 287,000 2,105,000 88,396,000 Aegean Tobago Captain Fergana Valley Uzbekistan March 2, 1992 285,000 2,090,000 87,780,000 Nowruz Field February 4, Iran , Persian Gulf 260,000 1,907,000 80,080,000 Platform 1983 Angola , 700 nmi ABT Summer (1,300 km; 810 mi) May 28, 1991 260,000 1,907,000 80,080,000 offshore Castillo de South Africa , August 6, 1983 252,000 1,848,000 77,616,000 Bellver Saldanha Bay Amoco Cadiz France , Brittany March 16, 1978 223,000 1,635,000 68,684,000 Italy , MT Haven Mediterranean Sea near April 11, 1991 144,000 1,056,000 44,352,000 Genoa Canada , 700 nmi November 10, Odyssey (1,300 km; 810 mi) off 132,000 968,000 40,656,000 1988 Nova Scotia December 19, Sea Star Iran , Gulf of Oman 115,000 843,000 35,420,000 1972 Irenes February 23, 100,000 733,000 30,800,000 Serenade Greece , Pylos 1980 Urquiola Spain , A Coruña May 12, 1976 100,000 733,000 30,800,000 United Kingdom , 80,000– 24,654,000– Torrey Canyon March 18, 1967 587,000–873,000 Isles of Scilly 119,000 36,666,000 United States , Greenpoint oil 17,000,000– Brooklyn , New York 1940 – 1950s 55,000– 97,000 400,000–710,000 spill 30,000,000 City a One ton of crude oil is roughly equal to 308 US gallons or 7.33 barrels approx.; 1 oil barrel is equal to 35 imperial or 42 US gallons. b Estimates for the amount of oil burned in the Kuwaiti oil fires range from 500,000,000 barrels (79,000,000 m 3) to nearly 2,000,000,000 barrels (320,000,000 m 3). 732 wells were set ablaze, while many others were severely damaged and gushed uncontrolled for several months. The fires alone were estimated to consume approximately 6,000,000 barrels (950,000 m 3) of oil per day at their peak. However, it is difficult to find reliable sources for the total amount of oil burned. The range of 1,000,000,000 barrels (160,000,000 m 3) to 1,500,000,000 barrels (240,000,000 m 3) given here represents frequently-cited figures, but better sources are needed. c Oil spilled from sabotaged fields in Kuwait during the 1991 Persian Gulf War pooled in approximately 300 oil lakes, estimated by the Kuwaiti Oil Minister to contain approximately 25,000,000 to 50,000,000 barrels (7,900,000 m3) of oil. According to the U.S. Geological Survey, this figure does not include the amount of oil absorbed by the ground, forming a layer of "tarcrete" over approximately five percent of the surface of Kuwait, fifty times the area occupied by the oil lakes

d Estimates for the Gulf War oil spill range from 4,000,000 to 11,000,000 barrels (1,700,000 m 3). The figure of 6,000,000 to 8,000,000 barrels (1,300,000 m 3) is the range adopted by the U.S. Environmental Protection Agency and the United Nations in the immediate aftermath of the war, 1991-1993, and is still current, as cited by NOAA and The New York Times in 2010.This amount only includes oil discharged directly into the Persian Gulf by the retreating Iraqi forces from January 19 to 28, 1991. However, according to the U.N. report, oil from other sources not included in the official estimates continued to pour into the Persian Gulf through June, 1991. The amount of this oil was estimated to be at least several hundred thousand barrels, and may have factored into the estimates above 8,000,000 barrels(1,300,000 m 3) (Wikipedia.org/wiki/oil_spill).

2.2 Oil Exploration in Nigeria The history of oil in Nigeria dates back to 1908, but it was in 1937 that Shell D’Arcy started prospecting for oil, its activities were halted in 1941 as a result of the second world war and later emerged as Shell BP Development Company and struck its first oil well in Oloibiri, an Ogbia village in the present Bayelsa state in 1956, then in 1958 it began full scale commercial exploration of oil, which was later joined by the Nigeria National Petroleum

Company (NNPC) as a collaborator and Elf Nigeria, subsidiary of the French oil company and

Agip oil company, a subsidiary of its Italian parent. Shell however remains the main operating company of the joint venture, as it is sorely responsible for a greater share of daily production between 800,000 and one million barrels of crude per day. What this implies is that for over 40 years, millions of barrels of crude oil have been exploited on daily basis from the Niger Delta

(Environment Watch, 1998: 9). The table shows the MNOCs operating in Nigeria as at 2006; and oil production summaries in 1967.

Table 2.2.1 MNOCs operating in Nigeria as at 2006

S/N NAME OF COMPANY YEAR 1. Shell Petroleum Development Company of Nigeria Ltd 1937 2. Tenneco Oil Company of Nigeria (Sold to NAOC) 1953 3. Mobil Producing Nigeria Unlimited 1955 4. Chevron (Formerly Gulf) Nigeria Ltd 1961 5. Texaco Overseas Nigeria 1961 6. Elf Petroleum Nigeria Ltd 1962 7. Phillips Pan Ocean Oil Corporation 1964 8. SAFRAP 1966 9. Nigeria Agip Oil Company Ltd 1972 10. Agip Energy and Natural Resources 1992 11. State Oil/BP Alliance 1992 12. Esso Exploration/Production Ltd 1992 13. Texaco Outer Shelf Nigeria Ltd 1992 14. Shell Nigeria Exploration and Production Ltd 1992 15. Total Nigeria Exploration and Production Ltd 1992 16. Amacco Corporation Ltd 1992 17. Chevron Exploration and Production Ltd 1992 18. Bough Ashland Oil Nigeria Ltd 1993 19. Conoco Oil Ltd 2000 20. Abacan Petroleum Ltd 2000 Source: Etekpe, A. (2007:71) The Politics and Conflict Over Oil and Gas in the Niger Delta Region: The Bayelsa State Experience, Port Harcourt: Tower Gate Resources.

Table 2.2.2 Crude Oil Production Summary in Barrels Per day, April, 1967

S/N Names of Fields No. of Wells Rivers State East Central Mid West East Central- State State Rivers State 1. Afam 4 --- 54358 ------2. Afam Umuosi 1 --- 547 ------3. Agbada 11 25194 ------4. Ahia 6 12961 ------5. Apara 4 1096 ------6. Bomu 25 76637 ------7. Ebubu 7 3440 ------8. Eriemu 2 ------2956 --- 9. Imo River 30 97195 ------10. Isimiri 4 --- 10570 ------11. Kokori 8 ------35562 --- 12. Korokoro-Tai 6 ------20519 13. Nkali 4 ------11291 14. Obagi 15 14604 ------15. Obigbo North 11 38754 ------16. Okan 27 ------56367 --- 17. Oloibiri 7 4418 ------18. Olomoro 21 ------52261 --- 19. Owei 4 ------14169 --- 20. Rumuekpe 1 37 ------21. Ughelli 3 ------6299 --- 22. Umuechem 14 31865 ------23. Uzere East 5 ------11861 --- 24. Uzere West 10 ------21984 --- Total 230 332201 16555 201459 31810 %Total 57.1% 2.8% 34.6% 5.5% Source: The Oil Rich River State, Port-Harcourt: Information Unit, office of the Governor, River State, 1972: 7 cited in Etekpe, 2007:60 68

The table shows recorded progress in oil production which began in 1958 with an output of about 5000 barrels per day while in 1967 production had risen to 582,025 barrels per day. The distribution shows that Old River State (now Rivers and Bayelsa State) account for 57.1 percent which translate to 332201 barrels per day, 34.6 percent from Mid-West state (now

Delta and Edo States) amounted to 201,495 barrels per day and East Central States 2.8 percent which approximates 16555 barrels per day while the oil wells at the boundary lines of East

Central states and Rivers states were 5.5 percent representing 31810 barrels per day Ibaba,

2005 (Etekpe, 2007:59-61; Ompadec Quarterly Report, 1993 cited in Ibaba, 2005). Presently, production is put at over 3 million barrels per day. This is depicted in table.

Table 2.2.3 NNPC’s Monthly Production Profile vs. Shuts in for the Year 2008 S/N Monthly Overall Daily Monthly Shut in (bbls) Production (bbls) Production (bbls) Production Capacity (bbls) January 67,122,292 3,201,468 99,245,508 32,123,216 February 60,380,977 3,201,468 92,842,572 32,461,595 March 64,000,319 3,201,468 99,245,508 35,245,189 April 58,930,055 3,201,468 96,044,040 37,113,985 May 63,636,321 3,201,468 96,044,040 32,407,719 June 60,542,039 3,201,468 96,044,040 35,502,001 July 65,961,347 3,201,468 99,245,508 33,284,161 August 65,241,907 3,201,468 99,245,508 34,003,601 September 65,157,212 3,201,468 96,044,040 30,886,828 October 70,192,271 3,201,468 99,245,508 29,053,237 November 70,192,271 3,201,468 99,245,508 29,053,237 December 63,319,397 3,201,468 99,245,508 35,926,111 Total 768,741,187 38,417,616 1,168,535,820 399,794,633 Source: Ajaero, C. (2009) Nigeria Lost Trillions , News watch , May, 4,

Table 2.2.4 NNPC’s Monthly Production Profile vs. Shut-in for January/February 2009 S/N Monthly Overall Daily Monthly Shut in (bbls) Production (bbls) Production (bbls) Production Capacity (bbls) January 63,042,650 3,201,468 99,245,508 36,202,858 February 57,563,067 3,201,468 92,842,572 35,279,505 Total 120,605,717 6,402,936 192,088,080 71,482,363 Source: Ajaero, C. (2009) Nigeria Lost Trillions , Newswatch , May, 4,

The shut in here are attributed to pipeline vandalism, operational constraints and Niger Delta crisis ( Newswatch, May 4, 2009). Ever since, the commercial exploitation of oil began in 1958, the commodity has increased the profile of Nigeria’s political economy. Ebeku (2007) asserts that in 1972 oil accounted for 83 percent of Nigeria’s exports and increased its revenue base from 17 percent in 1971 to 71 percent in 1973 and to 86 percent in 1975 and by the 1990s oil had become a monolith, constituting over 90 percent of Nigeria’s foreign exchange receipts and in 2000, oil accounted for ₦1.59 trillion or 83.5 percent of the total gross revenue for that year. Whereas the trade in oil and gas flourished in revenue and significance, it came with a price to the Niger Delta. The direct outcome of this price are spelt out in the frequent oil spills associated with the industry, discharge of oil effluent into living water sources, land take and gas flaring. The table illustrates the intensity of oil incidents. Table 2.2.5 Oil Spill Incidents in Nigeria (1976-1996) Year Number of Spill Quantity Spill Quantity Recovered Net Loss to the (barrels) (barrels) Environment (barrels)

1976 128 26,157.00 7135.00 19,021.50 1977 104 32,879.25 1703.01 31,176.76 1978 154 489,294.75 391,445.00 97,849.75 1979 157 64,117.13 63,481.00 630,635.95 1980 241 600,511.02 42,416.83 558,094.19 1981 238 42,722.50 5470.20 37,252.30 1982 257 42,841.00 2171.40 40,669.60 1983 173 48,351.30 6355.90 41,995.40 1984 151 40,209.00 1644.80 38,564.20 1985 187 11876.60 1719.30 10,157.30 1986 155 12,905.00 552.00 12,358.00 1987 129 31,866.00 6109.00 25,358.00 1988 108 9,172.00 1955.00 7,207.00 1989 118 5,,956.00 2153.00 3,830.00 1990 166 14,150.35 2092.55 12,057.80 1991 258 108,367.01 2785.96 105,912.05 1992 378 51,187.90 1476.70 49,711.20 1993 453 8,105.32 2,937.08 6,632.11 1994 495 35,123.71 2,335.93 32,787.78 1995 417 63,677.17 3,110.02 60,568.15 1996 158 399,036.67 11,838.07 387,198.60 Total 4647 2,369,470.04 549,060.38 1,820,410.50 Source: Department of Petroleum Resources, 1997 Cited in Inoni, Omotor and Adun (2006:43) The effect of oil spillage on Crop Yield and Farm Income in Delta State, Nigeria, Journal of Central European Agriculture, Vol.7, No.1. 70

In view of the frequency of the oil spills the oil operators have resorted to a deliberate policy of under reporting of oil spill incidents. Between 2006 and 2009, Nigeria lost 66, 697, 2975 barrels of oil to spillage. Nigerian Agip Oil Company, NAOC, recorded 50 percent of the spillage, followed by Royal Dutch Shell which recorded 20 percent. Mobil accounted for eight percent, Total Elf, six percent, and Chevron three percent. Addax and PPMC recorded one percent each. About 28,038.0721 barrels of oil were lost to spillage in 2006. It was the highest so far, while 11,878.1713 barrels were recorded in 2007 (Newswatch, November 9, 2009).

In 2008, the nation lost 21, 689.9805 barrels due to spillage. From January to June

2009, 5.093.0783 barrels have been spilled. Within this period, Agip recorded 718 oil spill incidents, the highest in the industry. Mobil followed with 635 incidents; Shell, 416; Chevron,

267 while NNPC recorded 30. Addax had 18, while Esso and Elf recorded 16 incidents each. In

2008, Nigeria recorded the highest number of spillage with 927 incidents. This was followed by

597 cases in 2007, while 252 cases were recorded in 2006 ( Newswatch, November 9, 2009).

Inoni, et al (2006) studied the effect of oil spill on crop production, land productivity and farm income using a sample of 262 crop farmers drawn randomly from 10 communities and 5 LGAs in the oil producing agricultural ecological zones of Delta State, and finds that oil spill reduced crop yield, land productivity and greatly depressed farm income as a 10 percentage increase in oil spill reduced crop yield by 1.3 percent while farm income fell by 5 percent.

Other studies opine that the frequency of oil spillages are attributable to a combination of forces involving corrosion of pipelines and tankers which account for 50% of all spills, 28% to sabotage and 21% to oil production operations while only 1% of oil spills is ascribed to

inadequate or non functional or production equipment (Nwilo and Badejo, 2001). Corrosion of pipe and tanks is fingered as accounting for the largest chunk of oil spill total because of the obsolete nature of the infrastructure. A fact confirmed by SPDC Report in 1995, that the life span of infrastructure is normally 15 years, but that most of the pipelines are as old as twenty five years, which were constructed between the 1960s and early 1980s to the then prevailing standards and that SPDC would not build them that way today. The table below therefore highlights the general impact of oil production operations or activities.

Table 2.2.6 Summary of Adverse Impacts of Petroleum Development PHASE (PROCESS) ADVERSE IMPACT Pre-Drilling Activity NOISE- Noise from aircraft or helicopter access and plant delivery. (Aerial and Seismic VIBRATION- Vibration from trucks, vehicles and aircraft or helicopters; from vibroseis or shot hole method. Survey) DAMAGE- Cracks may develop on walls of nearby buildings or dwelling houses from crack. WILDLIFE- Increased poacher access; disturbance of wildlife; pollution of water sources. CULTURE-Damage to site of archaeological, historical or cultural importance. INFRASTRUCTURE- Truck damage to dirt road and water course crossing points. EXPLORATORY SOIL- Erosion due to construction activities; contamination with oil, drilling mud and effluents. AND PRODUCTION VEGETATION- Loss of vegetation due to construction of access tracks and drill sites; extensive vegetation loss due to fire; DRILLING facilitation of encroachment in forests. WATER- Contamination of surface and ground water with oil, drilling mud and effluent; disruption of water courses or drainage. LANDSCAPE- Visual intrusion of drilling rigs; night lighting, flaring of gas. AIR- Smoke from gas flare; offensive odour. WILDLIFE- Increased poacher access; disturbance of wildlife; pollution of water sources. COMMUNITIES- Disturbance of previously remote communities; pollution or loss of vital natural resources for medicinal and other purposes; introduction of hitherto unknown diseases. CULTURE- Damage to site of archaeological, historically or cultural importance. INFRASTRUCTURE- Settlement logging or mining induced by new access. TANKER LOADING LOCATION- Spillage during loading operations with all its accompanying effects on the fauna and flora. STORAGE DEPOTS- Land pollution from effluent waste and social wastes of chemical cans and drums for the establishment of the storage depots. TRANSPORT- Destruction of farmlands and environmentally sensitive acres. REFINING- Land pollution from effluent discharge which contains wide range organic pollutants such as phenol hydrogen, sulphide, ammonia and gas. DECOMMISSIONING NOISE- Noise from closure of roads and course ways constructed to facilitate drilling of operations. WATER- Contamination of surface and ground water from the filing of mud incineration and waste pits. NAVIGATION- Offshore abandonment may obstruct navigation and pose danger to fishing. Source: Worika, 2002:48 Cited in Opukiri and Ibaba,(2008:182,183) Oil Induced Environmental Degradation and Internal Displacement in Nigeria’s Niger Delta, Journal of Sustainable Development in Africa, Vol.10, No.1.

It can be seen from the tabular descriptions that oil production activities impacts adversely on the eco system by destroying vegetation, mangrove forests, food/cash crops, fishing ground/marine life, reduction of nutrient value of the soil and induces land fragmentation (Opukiri and Ibaba, 2008). Related to oil production is gas flaring, a practice which involve the burning of associated gas found in oil so as to increase crude production.

Statistical evidence however shows that the practice of gas flaring is opposed in Western

Europe as 99 percent of associated gas is used or reinjected into the ground. This is indicated in the table.

Table 2.2.7 Flaring of Natural Gas in Major Oil Producing Countries (% of Gross Production in 1991)

COUNTRY PERCENTAGE FLARED United States Of America (USA) 0.6 Holland 0.0 Britain 4.3 Former Union of Soviet Socialist Republic 1.5 Mexico 5.0 OPEC COUNTRIES Nigeria 76.0 Libya 21.0 Saudi Arabia 20.0 Algeria 19.0 OPEC TOTAL 18.0 WORLD TOTAL 4.8 Source: Opukiri,C.O and Ibaba, S.I (2008:185) “Oil Induced Environmental Degradation and Internal Population Displacement In Nigeria’ Niger Delta” , Journal of sustainable Development in Africa, Vol.10, No.1,

The statistical evidence indicate that Nigeria flares over 70 percent of the gas it produces, which is the highest in the world in comparison with OPEC and Non OPEC countries. Studies have demonstrated that gas flaring affects the livelihood of farmers and is also linked to the occurrence of acid rain in the Niger Delta (Salau, 1993:19-22; Alakpodia,

2000:190-203; Efe, 2006:175-181). 74

The effect of acid rain is seen in its corroding effect on homes and other local structures which predispose inhabitants to other alternatives such as asbestos based material which has a stronger rate of capacity resistance to acid rain deterioration, unfortunately, asbestos only degenerates health by increasing the risk of developing lung cancer, mesotheliona and asbestosis. Recent findings have also established a relationship between gas flaring and the quality of water resources in the region which is reflected in the below.

Table 2.2.8 Showing Effect of Gas Flaring and Soil and Water Acidification Predomi Uses Age of Water of State of State of Perceived Causes of Treatment Regularity of nant Project Distributi Water in the Effects Water Crises Source ng Area Problem of Water System Rain Drinking Corrosion Not treated, Mildly acidic Gas Flaring Nil Regular and water Washing of roofs. occasionally and water and burning acute 20% Bathing gutters ash in colour borne of industrial Toilet diseases waste Well Same as 10 % below 10; Collected Not treated Parent Rainfall, Nil, but Regular and 40% above 25% 10; in plastic and material/rain Erosion occasionally acute -25% cans, iron inadequate deposition action with alum 15 years and 50% buckets with to 25years and stored sediment, in basins. whitish in colour, individually managed. Bores Drinking +15 years and +25 Pipelines Few bores not Lack of fund Acid Not treated Regular 30% years are faulty treated and and pollution infiltration 35% with inadequate by oil spillage and occasional supply corrosion of leakages the distributing system River Bathing, Since birth Not treated, Oil spillage Acid Nil Regular and 10% washing Used reduced and acid deposition, acute deposition Oil spillage discharges of waste Source: Efe, S.I and Mogborukor, J.O (2008:220) Acid Rain in Niger Delta Region: Implication on Water Resource Quality and Crises, International Conference on the Nigerian State, Oil Industry and the Niger Delta , Niger Delta University.

The researchers demonstrates that prior to oil exploration era, the major source of water supply were rain and river but with the advent of oil exploration, rain water use has been reduced to bathing during hot afternoon which has in turn placed greater demand on boreholes and well water for drinking. They found that due to the limitation of the availability of power the few existing boreholes imposes water scarcity and increases the competition and struggle for water supply, which necessitates the use of well and river that are not treated before consumption, while the distribution and harvesting system are subject to corrosion because of acid deposition which reduces the life span of the distributing system and bores were the water is stored (Efe and Mogborukor, 2008: 220, 221). This facts clearly demonstrates that the activities of oil corporations deals a devastating blow to the social and health fabric of the people as well as the environment upon which their livelihood and sustenance depends.

2.3 Optional Jurisdiction and NGOs in the International System

International awareness that oil corporations should be held liable for environmental and human rights violations under customary international law is rife. This is evidenced from several international regulatory mechanisms which set out codes of conduct for transnational corporations. Among which are the Organization for Economic Cooperation and Development

(OECD), the OECD Guidelines for Multinational Enterprises are recommendations by governments to multinationals, which provides voluntary principles and standards for responsible business conduct for multinational corporations operating in or from countries to adhered to the Declaration.

The guidelines were adopted by the OECD in 1976 and revised in 1979, 1982, 1984,

1991 and 2000 and it covers a wide range of subjects such as human rights, environment, information disclosure, combating bribery, employment, consumer interest, science and 77

technology, competition and taxation. It has about 40 countries that have adhered to these guidelines (Feeney, 2002). In the issue of environment, the guidelines required that corporations should within the framework of laws, regulations and administrative practice in the countries in which they operate and in consideration of relevant international agreements, principles, objectives and standards, take due account of the need to protect the environment, public health and safety and generally to conduct their activities in a manner contributing to the wider goal of sustainable development. (www.oecd.org)

The Stockholm Declaration of 1972, by the United Nations Conference on the Human

Environment, which had 114 participating states and a substantial number of international institutions and nongovernmental organizations provided twenty-six clear principles for state parties and TNCs. The Declaration holds that man has the fundamental right to freedom, equality and adequate conditions of life, in an environment of a quality that permits a life of dignity and wellbeing and he bears a solemn responsibility to protect and improve the environment for present and future generations.

Principle 6, seems to address the activities of resource base TNCs, it provides that: The discharge of toxic substances or of other substances and the release of heat, in such quantities or concentrations as to exceed the capacity of the environment to render them harmful on the ecosystem must be halted in order to ensure that serious or irreversible damage is not inflicted upon the ecosystem. The struggle of the people of all countries against pollution should be supported.

Principle 7, addresses States complicity, it enjoins state to: Take all possible steps to prevent pollution of the seas by substances that are liable to create hazards to human health, to harm living resources and the marine life, to damage amenities or to interfere with other

legitimate uses of the sea. Principle 25, states that: States shall ensure that international organizations play a coordinated efficient and dynamic role for the protection and improvement of the environment. While Principle 22, provides remediation, stating that: States shall cooperate to develop and further the international law regarding liability and compensation for the victims of pollution and other environmental damages caused by activities within the jurisdiction or control of such states to areas beyond their jurisdiction.

Also, Agenda 21, the Rio Declaration, adopted by more than 178 governments reaffirmed the earlier Declaration at Stockholm, its twenty seven principles enjoined states to respect international law with regard to environmental protection and sustainable development.

Principle 17 requires that: Environmental impact assessment, be undertaken for proposed activities that are likely to have significant adverse impact on the environment and are to be subject to the decision of a competent national authority. Principle 25 recognizes the link between peace, development and environmental protection.

The Draft Declaration on the Rights of Indigenous People adopted by 144 states recognizes “distinct and profound relationship with their land” and includes “the prevention and redress for . . . dispossession of their lands, territories or resources. Similarly, The Hague

Declaration and the Draft Declaration of Principles on Human Rights and the Environment both recognize environmental human rights and the right to live in dignity. Also, the UN

Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights also provides that: Transnational corporations and other business enterprises, as organ of society are also responsible for promoting and securing the human rights as set forth in the UDHR.

The major aim of the norms is to ensure that business communities are accountable on all aspect of human rights. For example, the norms stipulates that transnational enterprises shall recognize and respect applicable norms of international law, the public interest, development objectives, social, economic and cultural policies including transparency, accountability and prohibition of corruption, and authority of the countries in which they operate. The UN Norms further provides that transnational corporations and other business enterprises shall not offer, promise, give, accept, condone, knowingly benefit from, or demand a bribe or other improper advantage, nor shall they be solicited or expected to give a bribe or other improper advantage to any government, public official, and candidate for elective post, any member of the armed forces, or other individual or organization.

Furthermore that, transnational corporations and other business enterprises shall refrain from any activity, which supports, solicits, or encourage states or any other entities to abuse human rights and that transnational corporations and other business enterprises shall be subject to periodic monitoring and verification by the United Nations, other international and national mechanisms already in existence or yet to be created, regarding application of norms. This monitoring shall be transparent and independent and take into account input from stakeholders including non-governmental organizations as a result of complaints of violations of these norms

(Luvhengo, 2006:70-72). The UN Convention of the Law of the Sea (UNCLOS) which has been ratified by 166 states provides that states should take all necessary measures to prevent, reduce and control pollution of the marine environment that causes hazard to human health and living resources. It further mandates states to stipulate laws and regulations to prevent and control pollution of the marine environment.

The sub commission on the prevention of Discrimination and Protection of Minorities, considered the relationship between human rights and the movement and dumping of toxic and dangerous product and harmful waste. Additional Protocol to the American Convention on human Rights in the area of Economic, Social and Cultural Rights stipulates in Article 11, that everyone shall have the right to live in a healthy environment and to have access to basic public services; while the American Declaration of the Rights and Duties of Man Article 11, states that every person has the right to the preservation of his health through sanitary and social measures relating to food, clothing, housing and medical care, to the extent permitted by public and community resources. Article 25 of the Universal Declaration of Human Rights guarantees the right to a standard of living adequate for the health and well being of himself and of his family.

The International Labour Organization (ILO) Tripartite Declaration of Principles

Concerning Multinational Enterprises and Social Policy also set out principles in the field of employment, training, conditions of work, life and industrial relations which governments, employers and workers organizations and multinational enterprises are recommended to observe on a voluntary basis. The Declaration specifically enjoin multinational corporations to respect the sovereign rights of states, obey the national laws and regulations, give due consideration to local practice and respect relevant standard. It encourages respect for the

Universal Declaration of Human Rights and corresponding international Covenants adopted by the General Assembly of the UN as well as the constitution of the International Labour

Organization and its principles (www.ilo.org/ilolex/english/subjectE.htm).

The various principles enunciated by international institutions and adopted by member states suggest universal recognition of human rights standard for transnational corporations.

However, there is a significant neglect in addressing actual enforcement, thus creating a gap between theory and praxis. Shinsato (2005:199) pointed out that:

Most of these instruments that address environmental protection and economic development are criticized as being non binding, soft law agreements, many of which are worded so broadly that they provide little or no guidance to states or TNCs. The current international instruments do not sufficiently combine environmental protection and human rights or establish an environmental human right, nor do they provide legal enforcement mechanisms

This fact is also articulated in Amlon Metals, Inc. v. FMC Corp., wherein Judge Connor held that “plaintiff’s reliance on the Stockholm principles is misplaced, since those principles do not set forth any specific proscriptions, but rather refer only in a general sense to the responsibility of nations to ensure that activities within their jurisdiction do not cause damage to the environment beyond their borders,” 775 F. SUPP.668 (S.D.N.Y. 1991). Similarly, in Beanal V.

Freeport Mcmoran, Inc, Judge Stewart dismiss the case on the ground that no universal consensus on their binding status has yet emerged under international law 969 F. SUPP. 362

(E.D. La. 1997).

Also, in Flores v. Southern Peru Copper Corp. 343 F.3d 140 (2d Cir.2003) a suit was brought by 8 residents of Ilo, in Peru, in a U.S. district court against SPCC, alleging that the company’ operation had caused the death of some of the residents and they themselves had contracted asthma and lung disease as a result of environmental pollution from SPCC operations. The second circuit stated that the rights to life and health under article 25 of the

Universal Declaration of Human Rights, article 12 of the ICESCR and principle 1 of the Rio

Declaration which reiterate principle 1 of the Stockholm Declaration are not only far from being clear and unambiguous but also label them as “vague and amorphous”.

The second circuit explicated that even though article 12 (2) (b) of the ICCPR direct states to halt environmental pollution, it does not order particular measures or spell out what 82

levels of pollution are acceptable. It further reiterates that the texts are aspirational and that there is no indication that states have taken sufficient steps to apply it. With regard to article

24(1) of the Convention of the child which acknowledge the right of the child to the enjoyment of the highest attainable standard of health, the court points to the aspirational nature of the text and the lack of actual state practice. Whereas plaintiff proffer numerous declarations to buttress claims of violations of customary international laws, the court describes those declarations as merely aspirational principles which do not create legal obligations which are yet to be universally acknowledge by states as binding on them, consequently, the declarations were overruled as proper evidence of customary international law 343 F.3d 140 (2d Cir.2003).

This demonstrates that these instruments simply provided a normative program for the world community and thus revolve largely around voluntary ethics (Dupuy, 1991). For instance, Principle 23 of the Stockholm Declaration holds that:

Without prejudice to such criteria as may be agreed upon by the international community, or to standards which will have to be determine nationally, it will be essential in all cases to consider the systems of values prevailing in each country and the extent of the applicability of standards which are valid for the most advanced countries but which may be inappropriate and unwarranted social cost for the developing countries.

This clause places a restrictive role to international law by allowing nations to set their own standard so that the values and the social economic development of a country can be sufficiently factored in. Also, the International Labour Organization (ILO) legal framework provides merely for a fragile supervisory system without any ability to impose sanctions on an

ILO member which does not abide by its obligation under the ILO constitution or the ILO ratified conventions (Koebele, 2009).

Also, the OECD Guidelines for Multinational Enterprises clearly stipulate that: “the guidelines provide principles and standards of good practice consistent with applicable laws and that observance of the guidelines by enterprises is voluntary and not legally enforceable”

(OECD, 2008:12). Thus, Shaughnessy (2000) argue that corporations are motivated by profit and shareholders’ interest which takes priority over community, and as such are not likely to self impose codes that promotes environmental protection and human rights.

This scenario resulted in an interface known as the “third sector” which stands separate and mediates between the state and market (UNDP, 2001). This finds expression in civil society (Pharr, 2003). Thus civil society is regarded as an area of association and action independent of the state and market in which citizens can organize to pursue purposes that are important to them individually and collectively (Brown, Moore and Frumkin, 2000). Cohen and

Arato (1992) used the term civil society to categorize persons, institutions and organizations that have the goal of advancing or expressing a common purpose through ideas, actions and demands on governments. Similarly, Bratton (1994) describes civil society as a social interaction between the household and the state characterized by community cooperation, structures of voluntary associations and networks of public communication.

Consequently, the Commission on Sustainable Development (CSD) responsible for implementing Agenda 21 classifies civil society into the following major groups; women, children and youth, indigenous peoples and communities, nongovernmental organizations, workers and trade unions, the scientific and technological communities, business and industry and farmers (Pace, 2002). In this categorization, Pace blurs the line between civil society and business. while the scholarship on civil society confines its constitutive elements to formal civic organization and highlights the organizational aspect of civil society, insisting on definite 84

standards such as; autonomy from both social interests and the state; capacity for collective action that promotes interests or passion; absence of an intention to govern the polity and agreement to act within civil rules conveying mutual respect; which invariably implies that the application of violence is avoided and respect for other actors and the observance of law is nurtured (Hadenius and Uggla, 1996; Fine and Rai, 1997). This view corroborates the popular perception of civil society as civic associations with formal structures that would permit the pursuit of only specific civic interests. The membership of civil society is socially inclusive encompassing individuals to religious and academic institutions to issue focused groups such as nonprofit or nongovernmental organizations. In the sphere of global governance, NGOs plays the most prominent role and constitutes the main emphasis in this chapter.

The 1990s saw a proliferation of NGOs activities in the area of championing human rights, environmental protection, sustainable development, poverty alleviation, animal welfare, arms reduction and provision of disaster relief (Charnovitz, 1997). The nomenclature

“nongovernmental organization” dates back to 1950, when the United Nations coined the term to differentiate it between private, nonprofit organizations that were independent of government and the United Nations specific relations with them.

Today, the United Nations (2003) depicts an NGO as; any non profit voluntary group which is organized on a local, national or international level; task oriented and driven by people with common interests. NGOs perform a variety of services and humanitarian functions, bringing citizen’s concern to governments, monitor policies and encourage political participation at the community level. They provide analysis and expertise, serve as early warning mechanisms and help monitor and implement international agreements. Some are organized around specific issues, such as human rights and the environment or health. The

United Nations and its related bodies have been the most open supporters and friendly collaborators of NGOs (Weiss, 1999).

In 1948, the UN listed forty one consultative groups that were formally accredited to participate in consultative processes and in 1998 NGOs had risen to more than 1500 organizations with a varying degree of participation and access (Simmons, 1998). The United

Nations had also partnered with NGOs in the implementation of key programmes especially in the areas of emergency response, human rights, election monitoring, and status of women, population and environment. Thus Agenda 21 highlights the need for collaboration, stating that the United Nations system including international finance and development agencies and all intergovernmental organizations and forum should, in consultation with nongovernmental organizations, take measures to …enhance existing or where they do not exist establish mechanism and procedure within each agency to draw on the exposure and view of NGOs in policy and program design, implementation and evaluation.

The 1992 Earth Summit also acknowledged that the commitment and genuine involvement of non state actors are significant in attaining sustainable development goals.

Former, UN Secretary General, Boutros Boutros - Ghali’s stimulating remark in 1995 captures the prevailing sentiment within the UN on the function of NGOs; that nongovernmental organizations are a basic form of popular representation in the present day world. Their participation in international relations is in a way a guarantee of the political legitimacy of those international organizations. It is therefore not surprising that in a short space of time we have witnessed the emergence of many new nongovernmental organizations (UNRISD, 1996:

Kumat, 220:163).

Similarly, another former UN Secretary General, Kofi Annan declared that NGOs are the conscience of humanity (Paul, 2000). Such glowing recommendations bestow moral legitimacy on NGOs to participate in formal decision making process as delegates with official or semi official status in for example World Bank meetings and UN summits (Holmen and

Jirstrom, 2009). Throughout the 1990s NGOs continued to focus on official UN deliberations and the international policy arena. NGOs have continued to adopt various channels in influencing international deliberation. They have sought accreditation at international intergovernmental conferences where they could lobby government delegates, organize briefings and even officially address plenary sessions. Performance assessment and monitoring of environmental conditions by NGOs have thus contributed in holding decision makers in international arenas publicly accountable for decisions in ways that the intergovernmental system itself could never accomplish (Gaer, 1996). Weiss (1999) asserts that NGOs are capable of making sensitive or politically important information public, something that intergovernmental organizations are often reluctant to do because of their dependence on member states for resources.

Among the range of organized forces and institutions of civil society, NGOs are regarded as representing the interests of the people, to the greatest extent possible. In other words, NGOs have come to replace other well established political organizations such as trade unions, welfare associations, religious organizations and trade associations that traditionally represent the interests of various constituencies of society. In relation to these organizations, it is argued that NGOs represent the interest of the broadest spread of people and the underprivileged of society, who tend to have no structures of representation in public affairs except perhaps the right to vote during election time (Kamat, 2004).

Nongovernmental organization’s work on the environment led to the adoption of the

Montreal Protocol on Substances depleting the Ozone layer in 1987. The international campaign to ban land mines; an NGO coalition was prime mover in the Mine Ban Treaty of

1997. The coalition for international criminal court was indispensable to the adoption of the

1998 Treaty of Roma and another NGO mobilization forced governments to abandon secret negotiations for the Multilateral Agreement on Investments in 1998. In the late 1990s, the

NGO working group on the Security Council emerged as an important interlocutor of the UN’s most powerful body, while the Jubilee 2000 Campaign changed thinking and policy on poor countries debt. At the same time an increasingly influential international NGO campaign demanded more just economies from the Third World Organization, the International Monetary

Fund and the World Bank. These recent NGO victories have often been due to effective use of the internet enabling rapid mobilization of global constituencies (Paul, 2000).

NGOs activities also affect the involvement of MNEs in global governance and value creation. NGOs efforts to develop voluntary codes of conduct such as the UN Global Compact and the Forest Stewardship Council demonstrates that NGOs serve as important social counter weights to the economic efficiency drivers behind MNE actions (Teegan, Doh and Vachani,

2004). In addition, by advocating for private firms to include social interests in their decision making calculus, NGOs can promote social welfare alongside economic value.

NGOs can be classified by the benefits they create; membership or club NGOs produce benefits geared toward their members, whereas social purpose NGOs promotes broader social interests. Social purpose NGOs are further classified according to their principal activities.

Advocacy NGOs work on behalf of others who lack the voice or access needed to promote their interests, while operational NGOs provide critical goods and services to clients with unmet

needs. Although some NGOs engage exclusively in either advocacy or operational efforts, many are hybrid NGOs which use advocacy and operational means to achieve social benefit

(Parker, 2003 in Teegan, et al, 2004).

Locally based NGOs are the typical model of NGOs in the south and are known as

Community Based Organization (CBOs) or Grass root organization (GROs) to distinguish them from other models of NGOs that have emerged within less than a decade (Kamat, 2004).

Community Based Organizations (CBOs) emerged in the post war period between 1950s and

1980s in response to the failure of post colonial states to ensure the basic needs of the poor. For the most part, the leaders of CBOs were socially conscious middle class citizens, many of whom had been active in women’s movements or radical left movements of post independence period. These NGOs promoted a development with social justice approach and developed political rights awareness campaign alongside health and economic project (Garain, 1994 in

Kamat, 2004:7).In development literature, CBOs have the greatest support from all segments of the international development community; for they are seen as the main catalysts for bottom up development which entails working with actual communities and implementing development projects at the local level (Bebbington and Farrington, 1992 in Kamat, 2004).

Global NGOs on the other hand, engage in charity and humanitarian aid, (e.g. Red

Cross, Save the Children, Medecins Sans Frontiers) or in advocacy for human rights (e.g.

Amnesty International, Human Rights Watch) and environmental protection (Greenpeace,

World Wild Life Foundation). There are others with a more outspoken development orientation

(e.g. Oxfam, Action Aid, Ford and Rockefeller Foundation). Among the latter category are the

Northern NGOs such as the Sasakawa Foundation, which can be called mainstream modernizers with a strong belief in technology as a means to overcome food shortages and

reduce poverty in poor countries. Such NGOs generally operate in alliance with third world government, while other Northern based NGOs (e.g. Twin Trade, Fair Trade, Technoserve) are market friendly and assist third world producer organizations in accessing the world market and to get a larger share from exports (Holmen and Jirstrom, 2009). They are also others that tend to be political, anti capitalist and motivated by environmental concerns, e.g. Both Ends, Friends of the Earth (Holman and Jirstrom, 2009).

In Nigeria, the down turn of the economy in the early 1980s and the adoption of neo liberal policy of structural adjustment program which led to severe economic hardship and unemployment coupled with military repression, corruption and the eventual annulment of the

June 12, 1993 presidential election engendered the emergence of civil groups which challenged the legitimacy of the state. This scenario provided the enabling environment for the flourishing of civil groups in the oil producing communities which began to demand for increased oil benefits and environmental justice in the Niger Delta region.

The civil groups in the region are made up of different configurations; there are the communal and ethnic groupings, ethnic youth associations, pan ethnic groups and environmental and civil rights groups. Tables 1- 4, outline the profile of these groupings and the content of their demands both to the state and oil corporations.

Table 2.3.1 Profile of active communal and ethnic groups in the Niger Delta conflict S/N Civil Society Objectives/Demands Specific Action Leadership Ethnic/State Base/Period 1. Movement for the Protest against environmental Non violent protest against oil K. Saro-Wiwa, Ogoni/Rivers 1990-2000 Survival of Ogoni degradation and neglect, struggle for companies and the state which 1993-5. Ledun People (MOSOP) resource control, self determination and led to shut down of oil Mitee, 1995- development production since 1994 2000 2. Ijaw Elders Forum Condemnation of militarization, Advertorials, Interviews, Press E.K. Clarke Ijaw 1998-2000 (IEF) repression, Demand for equity statements & comments participation and development projects 3. Ijaw National Condemnation of state repression, Advertorials, Press releases, Joshua Ijaw 1998-2000 Congress (INC) Demands for development & true dialogue/meetings with state Fumudoh federalism officials, coordination of Ijaw ethnic struggle. Egbema National Deplores social irresponsibility of Notices to oil companies to V. Nwango, Egbema/Rivers 4. Congress (ENC) oil companies, Made Egbama be socially responsible or J. Duru etc 1998-2000 Charter quit their land 5. Isoko Community Seek facilities and development of Meeting with Shell, Support Godswill Isoko/Delta 1997-2000 Oil Producing communities by Shell, Condemns of Youths during seizure of Edegware Forum (ICOPF) reneging on agreements oil facilities (chairman) 6 Bayelsa Indigenes Condemnation of military Press statements R.J.A. Ijaw/Bayelsa 1999/2000 Association (BIA) occupation, Demand compensation, Hobobo employment in oil companies (president) 7. Elimotu Deplores non development, pressure Shut down of Shell’s Kolo Maxwell Oko Elebele, Emirengi, Otuasega Movement (EM) on Shell to develop Ogbia and Creek station 1998-2000 Oloibiri 8. The Izon National Deplores environmental degradation Press statements, Gave Ijaw 1998-2000 Development and and non benefits, Demands ultimatum to oil companies Welfare amenities/facilities from oil to quit Ijawland by 1 April Association companies 1998 (INADEWA) Source: Ikelegbe, A. (2001:444,445) “Civil Society, Oil and Conflict in the Niger Delta Region of Nigeria: Ramifications of Civil Society for a Regional Resource Struggle”, The Journal of modern African studies, Vol. 39, No. 3

Table 2.3.2 Profile of active Youth Associations in the Niger Delta Struggle Group Objectives, Demands & Grievances Specific Actions Leadership Ethnic/State Base & Period 1.Ijaw Youth Council (IYC) Deplores marginalization, neglect, Made Kaiama Declaration. Prolonged Cllective Ijaw 1999-2000 militarization & repression, Demands violent conflict with state security, Calls leadership led by compensation, development, resource on oil companies to vacate Ijawland, Isaac Osuaka control & federal restructuring Seizure of oil facilities, press releases. 2.Ikwere Youth Movement Community and employment benefits Press statements criticizing appointment Uche Okechukwu Ikwere 1998-2000 (IYM) from WILBROS Oil Company of OMPADEC chairman (1998). Occupation of WILBROS premises in protest at Choba, Port Harcourt (October 1999) Isoko National Youth Movement Complaints of Marginalization, Shut down of 5 oil flow stations in Fred Obe Isoko/Delta 1998-2000 (INYM) neglect and degradation. Demand for Isokoland in 1998-2000; Press (President) development and equity. statements; meeting with state officials Movement for the survival of Agitation for better deal from oil Storming, overpowering of security and Timi Ogoriba 1998-2000 Izon Nationality (MOSIN) companies and government. Seeks release of their president from detention (president) redress of neglect and at government house, Yenagoa July underdevelopment 1998 Niger Delta Oil Producing Struggle against neglect & Violent confrontations; agreed to cease Saturday Ijaw 1998-9 Communities (NDOPC) underdevelopment fire and lay down arms following Eregbene meeting with O. Obasanjo on 3 Jan.1999 Niger Delta Volunteer Force Under development, lack of benefits Organization of youths for seizure of oil Ijaws 1998-22000 (NDVF) from oil exploitation, neglect and facilities and armed confrontation with marginalization the state and Itsekiris. Bayelsa youths Federation Neglect and underdevelopment, Numerous press statements condemning Nengi James Ijaws 1999-2000 (BYFN) Defense of youths in encounter with state repression, militarization and the state. human rights abuses Movement for the survival of Seeks federal restructuring and Press releases, meetings, actions in the P. Fregene Itsekiri/Delta 1998-2000 Itsekiri Ethnic Nationality resource control Ijaw / Itsekiri conflict (MOSIEN) Urhobo Youth Movement Demands for environmental cleaning, Threat to shut oil production in Ejabefio Ogodo Urhobo Delta 1999-2000 (UYOMO) development, employment and Urhoboland by February 1999 if (deputy co partnership in oil production demands were not met ordinator) Federated Niger Delta Izon Condemnation of state repression, Violent encounter with the Itsekiris and Fred Orubebe Ijaws 1998-2000 Communities (FNDIC) Demand for resource control, equity, the state, seizure of oil facilities. Threats federal restructuring & development to oil workers and foreigners to leave the region Source: Ikelegbe, A. (2001:446,447) “Civil Society, Oil and Conflict in the Niger Delta Region of Nigeria: Ramifications of Civil Society for a Regional Resource Struggle”, The Journal of modern African studies, Vol. 39, No. 3

Table 2.3.3 Profile of Pan ethnic civil groups in the Niger Delta

S/N Group Grievances/Demands Activities/Specific Action Leadership Spred 1 Delta Oil Producing Complaints of pollution, neglect, Press releases and interviews, meetings with oil Diamond Emuobor 1993-9 Communities impoverishment. Seeks better benefits for companies (President) Association (DOPCA) communities 2 Niger Delta Elders Neglect, Under development and inequality Advertorial in national newspapers E.K. Clark 1998-2000 Forum (NDEF) of resource allocation 3 Niger Delta Peace Condemnation of ecological damage, neglect, Press statements condemning military Suokere Agidee 1999 Forum (NDPF) inequitable resources allocation occupation and advocacy of solution (General Secretary) 4 CHICOCO Movement Condemnation of obnoxious laws, ecological Rallies, press releases, calls on oil companies to Oronto Douglas 1997-2000 (CM) damage and neglect withdraw 5 Students of Oil Mineral Demands removal of OMPADEC chairman, Demonstrations through the major streets of Port 1998 Producing Areas (1998) recruitment of graduates from region, Harcourt in Nov.1998 (SOMPA) release of detained activists 6 Movement for the Marginalisation and neglect. Demand for Sued the federal government over the Eastern Survival of Eastern Niger Delta indigene to head OMPADEC appointment of non indigene for OMPADEC Nigeria Nigeria and Niger Niger Delta Deltans (MOSIENND) 1998 7 South-South Peoples Demand for reparation, equitable revenue, Press statements and releases E.K. Clarke Niger Delta Conference (SSOPEC) federal restructuring, development 2000 8 Niger Delta Women for Condemnation of military deployment & Organised protest in Port Harcourt against Brisibe, A. ND 1999- Justice (NDWJ) repression. Seeks dialogue, true federalism & militarization (president) 2000 resource control 9 Southern minorities Seeks resource control, derivation principle. Advertorials, rejoinders, Advocacy during the 1994-96 Forum (SMF) Deplores injustice, inequity, neglect & Constitutional Conference structural imbalance of the federation 10 Niger Delta Deplores militarization and military Protests in front of USA Embassy in 1999. Godwin O. Imozor 1999-2000 Professionals (NDP) atrocities, demands resource control Threaten to cut oil flow to the North over Sharia in March 2000. Litigation over derivation funds 11 Union of Niger Delta Demands resource control, abrogation of Conferences and release of communiqués D.O. Dafinone Niger Delta (UND) unfavourable laws and federal restructuring (chairman) 2000 12 Traditional Rulers of Oil Demands for derivation principle, Meetings with governments, Conferences, HRHE. A. Ukpa 1995-2000 mineral Producing development programmes Communiques, Press releases (Acting chairman) Communities of Nigeria (TROPCON) Source: Ikelegbe, A. (2001:448,449) “Civil Society, Oil and Conflict in the Niger Delta Region of Nigeria: Ramifications of Civil Society for a Regional Resource Struggle”, The Journal of modern African studies, Vol. 39, No. 3

Table 2.3.4 Profile of Local Environmental and Civil Rights Groups in the Niger Delta Conflict S/N Group Objectives, Specific Action Leadership Spread/Period Grievances/Demands 1 Niger Delta Human Environmental and Detailed R. Azibaola 1998-2000 and Environmental human rights protection. monitoring of (President) Rescue Organization Condemnation of state repression, (ND-HERO) military occupation, state human rights repression and coercive abuses and resolution of the conflict military occupation. Statements, interviews and comments on the conflict 2 Ijaw Council For Protection of Letters, press Patterson 1998 Human Rights environmental and civil releases, calling Ogon (ICHR) rights for cessation of (Secretary) hostilities and that oil companies leave Ijawland until the issues in conflict are resolved 3 Environmental Protection of Press releases, Nimmo Pan ethnic Rights Action (ERA) environmental and civil statements, Bassey 1998-2000 rights situation reports (President) of oil spillages and state repression 4 Oil Watch Group Restoration and Campaigns for 1998 (OWG) compensation for environmental environmental restoration degradation schemes 5 Institute of Human - Condemnation of Anyakwee 1999 Rights and troop Nsiriovu Humanitarian Law deployment and (IHRHL) their atrocities Source: Ikelegbe, A. (2001:451) “Civil Society, Oil and Conflict in the Niger Delta Region of Nigeria: Ramifications of Civil Society for a Regional Resource Struggle”, The Journal of modern African studies, Vol. 39, No. 3

The tables show that civil groups in the Niger Delta have generally relied on press statements, interviews, conference communiqués and advertorials, commentaries and publicized meetings, dialogues, negotiation, ultimata or quit threats, peaceful protest, demonstrations and confrontations targeted at MNOCs so as to achieve community development, reparation, employment, equity participation and to avert environmental

degradation. These movement also aim at the oil partnership (the State), in which case the civil demand seeks development, derivation, equity participation, resource control, federal restructuring, condemnation of militarization and offensive state policies and laws.

2.4 Advocacy and Litigation

In general terms advocacy denotes giving a voice to people that were not heard before

(Gehrels, 2003). NGOs advocate in various ways by lobbying, serving as representatives and advisory experts to decision makers, conducting research, holding conferences, staging citizens tribunals, monitoring and exposing the actions and inactions of others, defining agendas, developing and promoting codes of conducts and organizing boycotts (Hudson, 2002 in Teegen et al, 2004), in this way NGOs give voice and provide access to institutions that promote social gain or mitigate negative spill over from other sectors action (Teegan et al, 2004) .

Advocacy or international nongovernmental organizations (INGOs) do not operate locally, that is they do not represent a particular geographically defined community, rather they tend to be issue based and the constituency they represent may encompass different regions and countries. INGOs organize national and international campaigns for particular kinds of policy or legislative changes and in this way function more as a lobby group (Kamat, 2004). These

NGOs act where change cannot be attained by citizens alone or by an unorganized movement

(Pricen and Finger, 1994). This target is achieved by direct engagement with the government and efforts at influencing different organizations, including elected government, the bureaucracy, and the courts through public opinion (Rush, 1990).

Table 2.4.1 highlights the main features of selected INGOs

Name of NGO Location Established Main Features Amnesty London 1961 The organization has worldwide membership strength of 2.2 million. Mission International is to undertake research and action aimed at preventing and ending grave abuses of human rights; promotion of the rights to physical and mental integrity; freedom of expression and conscience; freedom from discrimination. Method - Media attention, direct appeal, campaign, research and lobbying. Global focus. Centre for New-York, 1966 Founded by attorneys who represented civil rights movement in the south, Constitutional USA committed to the creative use of law as a positive force for social change. Rights Mission is to advance and protect the rights guaranteed by the United States constitution and the Universal Declaration of Human Rights. Method : Advocacy, legal representation and public education. International focus. Greenpeace USA 1971 High popularity and effectiveness from using aggressive local activism and flamboyant media events. Mobilize public support on environmental issues. National and international focus. Human Rights New-York, 1978 Dedicated to protecting the human rights of people across the world from Watch USA inhuman conduct in wartime. HRW investigate and expose human rights violations and hold abusers accountable, challenges government and those who hold power to end abusive practice and respect international human rights law. Method: human rights activism. International focus. Partnership 1986 Canada To strengthen good governance and respect for human rights, prevent conflict Africa Canada related to national resource exploitation in Africa. Method : Research and advocacy. Universal focus

Global Witness London & 1993 Engages in research that exposes corrupt exploitation of natural resources and Washington international trade system. Method: advocacy and lobbying aimed at stopping resource linked conflict and human rights and environmental abuses. Worldwide focus Earth Rights Washington 1995 Mission is to ensure government and corporate accountability for human rights International & Thailand and environmental abuses. Method - advocacy and litigation. Global focus Sources: www. Amnesty.org; www.earthrights.org www.ccrjustice.org; www.globalwitness.org www.hrw.org

A significant feature of international nongovernmental organizations is their role in the cessation of violent conflict in resource endowed regions of Africa. The scholarship linking trade in natural resources (diamonds, oil, etc.) and civil wars in countries such as Angola,

Liberia, Cote d’Ivore, the Democratic Republic of Congo and Sierra Leone is copious (Soysa,

2000; Hirsch, 2001; Campbell, 2002; Lamptey, 2002; Bhavnani and Synder, 2005; Luvhengo,

2006; Juma, 2007; Smillie, 2010).

In response to the persistent resource conflict, Global Witness pioneered the move to break the link between the exploitation of natural resources, conflict and corruption as a result of investigation and lobby (www.globalwitness.org). This was followed by large scale campaign and advocacy by Amnesty International, Partnership Africa Canada and Global witness which brought the menace to global attention and especially consumer countries; through a network of national governments, transnational corporations, industry associations and INGOs, a number of commodity control regimes were introduced to reduce the amount of conflict in resource endowed countries; two examples which fittingly describes these process are the Kimberly Process which deals on rough diamonds and the Extractive Industries

Transparency Initiative (EITI) that requires transnational corporation and government to publish what they pay or receive for extractive resources (Burbank, 2006).

These networks of association were able to restrict the sale of illicit diamond in the international market through “consumer boycott” and the method “of name and shame”. This led to the adoption of the United Nations General Assembly Resolution A/RES/55/56, on the creation of an international certification scheme for rough diamond. Subsequently the Kimberly

Process certification scheme was established in 2003 with the voluntary participation of 67 countries and the major producers and traders of rough diamonds which requires that its

members are to establish export and import control regimes to document the path of rough diamonds from the time they were mined to when they were exported, the scheme require that:

1(a) each shipment of rough diamonds crossing international border should be

transported in a tamper resistant.

b) Accompanied by a government- validated Kimberly Process Certificate.

2 a) each certificate must be resistant to forgery, uniquely numbered and describe the

shipment content. b) The shipment is only supposed to be exported to KPCS

participant countries. Failure to comply may result to removal of the non complying

member country (www. Kimberly process).

The report of Global Witness (2005) indicates that in as much as the Kimberly process is successful it is also marred by procedural limitations; however, the achievement of INGOs to date is in the sphere of litigation. The Centre for Constitutional Rights have brought approximately one hundred and thirty past cases and over fifty current cases in International law court for victims of human rights violations. Many of the cases brought by Centres for

Constitutional Rights have won historic victories and have established major legal precedents, from the land mark case of Filatiga v. Pena Irala which opened US courts to victims of egregious human rights from any part of the globe to Now v. Terry which established a buffer zone around abortion clinic (www.ccrjustice.org).

Similarly, Earth rights International have filed numerous legal suits in U.S. courts on behalf of people around the world whose earth rights have been violated by governments and transnational corporations. Notable cases include Doe v. Unocal Corp., wherein the plaintiffs

(Burmese peasants) suffered abuses ranging from forced relocation, rape, torture and murder.

Earth rights International in collaboration with Centre for constitutional rights brought the landmark suit. Unocal consequently settled the plaintiff’s claims and paid compensation.

Another significant case is Wiwa v. SPDC. The Centre for Constitutional Rights in alliance with Earths Rights International sued SPDC for their complicity in extra judicial killing of Ken Saro Wiwa along with 8 other leaders of the Movement of the Survival of the

Ogoni People (MOSOP); including other human rights violations. On the eve of trial, Shell agreed to pay for the settlement of the plaintiffs as well as the establishment of a community trust fund that will benefit the Ogoni people (www.earthright.org; www.ccrjustice.org). These cases demonstrate that the monitoring of the activities of Oil Corporation by International nongovernmental organizations’ ensures corporate accountability for human rights and environmental abuses. Subsequently, the legal suit brought on behalf of members of Ogoni community by Centre for Constitutional Rights and Earth Rights International to the U.S court brought redress to the plaintiffs.

In the Niger Delta, local civil groups have also employed advocacy, litigation, as well as agitation tailored toward challenging the state and MNOC policies and practices as strategy.

In 1996 a communication was brought to the African Commission on behalf of the Ogoni people, by the Social and Economic Rights Action Center (SERAC), a Nigerian-based NGO, and the Economic and Social Rights Action Center, a New York-based NGO. The communication dealt with quite a number of alleged serious human rights violations of the

Ogoni people.

Coomans (2003) averred that this communication is important and special, because, for the first time, the Commission was able to deal in a substantive and ground breaking way with alleged violations of economic, social and cultural rights which formed the substance of the

complaint. In addition, in dealing with the communication, the Commission took a firm and dynamic approach that may contribute to a better and more effective protection of economic, social and cultural rights in Africa. Similarly, In 1999, the Campaign for Peace and Justice in

Africa filed a motion at the federal High Court in Port Harcourt to prevent the declaration of a state of emergency in Bayelsa, also, the Ijaw National Congress (INC) sued the federal government over the dredging of the river Niger, while the Niger Delta Professionals sued the federal government over the effective date of the payment of the 13 per cent derivation

(Ikelegbe, 2001).

Conclusion

There are several international regulatory instruments which provide standards for oil corporations and host governments. However these instruments fail to provide specific sanctions that can be legally binding on states, as such the principles enunciated do not create binding obligations that states have universally acknowledged; similarly corporations do not feel obligated to self impose these voluntary codes that promote environmental protection and human rights against profit and shareholders interest, moreover, there is no universal world court or regulatory institution that provides jurisdiction in enforcing corporate liability which thus creates an accountability gap.

Following this limitation, the pressures of environmental hazards, land seizure without adequate compensation and militarized commerce in the Niger Delta has generated conflicts which have endangered an international response, a response brought about by the exigencies of the global democratic movement that has stimulated and sustained the struggle for minority rights. International nongovernmental organizations as unit of civil society have become more

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involved in monitoring the implementation of standards through litigation and advocacy, by organizing national and international campaigns for particular kinds of policy or legislative changes, monitoring and exposing the actions and inactions of governments and corporations whose commercial activities promote conflict in developing countries. In this light, we accept the hypothesis that international regulatory mechanisms on human rights and NGO activities reduce the incidence of human rights infringement in Ogoniland

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CHAPTER THREE THE STATE AND THE ENFORCEMENT OF THE LIABILITY OF OIL CORPORATIONS IN THE NIGER DELTA

3.1 Nigeria/ U.S. Trade and Investment Relations

This section analyzes a significant denominator in the economy of the United States and that of Nigeria. According to the U.S. Dept of Energy (2003) the United States has about five percent of the world’s population but consumes one fourth of the world’s petroleum, which is approximately 20 million barrels per day, out of a total world consumption of eighty million barrels. In the case of Nigeria, agriculture was formerly the dominant sector of the economy which accounted for over 70 % of the Gross Domestic Product (GDP) and employed about 70

% of the total workforce and contributed approximately 90 % of foreign revenue, with a rob off effect on the manufacturing sector which accounted for 8.2 % from a mere 4.8 % in GDP

(CBN, 2002).

This scenario however changed when oil became a globally demanded commodity which led to the emergence of the Organization of Petroleum Exporting Countries (OPEC) and its bargaining power which successfully transform Third World Countries into powerful cartel thereby seizing price initiative from the oil majors and Nigeria’s increased awareness of international politics transformed the country into the club of oil rentier states. Oil subsequently accounted for over 90 percent of Nigeria’s export income annually. In 2000 alone, Nigeria received 99.6 percent of its export income from oil (Ross, 2003). This stands to reason that oil commodity is a common denominator in the United States and Nigeria and that both countries

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are oil dependent. The United States depends on oil imports for industrial survival while

Nigeria depends on oil export for economic survival. The table illustrates Nigeria’s oil dependency.

Table 3.1.1 Showing the Twenty Most Oil Dependent Countries in 2000 (Fuel Export as a Percentage of Total Exports) S/N COUNTRIES PERCENTAGE OF TOTAL EXPORT 1. NIGERIA 99.6 2. ALGERIA 97.2 3. SAUDI ARABIA 92.1 4. IRAN, ISLAMIC REPUBLIC 88.5 5. VENEZUELA, R.B 86.1 6. AZERBAIJAN 85.1 7. OMAN 82.5 8. TURKMENISTAN 81.0 9. SYRIAN ARAB REPUBLIC 76.3 10. BAHRAIN 71.0 11. TRINIDAD AND TOBAGO 65.3 12. NORWAY 63.9 13. KAZAKSTAN 53.9 14. RUSSIAN FEDERATION 51.3 15. ECUADOR 49.4 16. COLOMBIA 41.4 17. PAPUA NEW GUINEA 28.8 18. INDONESIA 25.4 19. AUSTRALIA 21.9 20. LITHUANIA 20.9 SOURCE: Ross, M. (2003:19) Nigeria’s Oil Sector and the Poor in Nigeria: Drivers of Change Program . UK: DFID

This shows Nigeria’s extraordinary dependence on oil export; in 2000 alone 99 percent of its income was derived from oil which indicated that she is the most oil dependent country in the world and that its non oil exports were significantly small. According to Ross (2003) between

1970 and 1999, the Nigerian petroleum industry generated about $231billion in rents for the

Nigerian economy in constant 1999 dollars or $1900 for every man, woman and child. Prior to the advent of oil production, the Nigerian economy was dominated by foreign monopoly capital.

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Akinsanya (1981:769) pointed out that “on the eve of British devolution of power to the Nigerian political class indigenous traders controlled only 5 percent of imports, while the 3 largest expatriate firms accounted for 49 percent of all traded items. Of the stock of direct foreign investment which stood at $1.069 million at the end of 1967, some 53.8, 16.4 and 14.5 percent represented British, American and Dutch investment respectively”. Also, Hilton’s industrial survey of 625 manufacturing companies in Nigeria shortly after independence, showed that out of a total paid up capital of $1.79 million, private non Nigerian sector accounted for almost $126 million, namely 70 percent. Of this 51 percent was British, 22 percent was Western European, while 20 percent was American. The remaining 7 percent was between the Lebanese and Indians (Hilton, 1976: 146).

The early blessing of the advent of this oil wealth was the promulgation of the Nigerian

Enterprise Promotion Decree (NEPD, 1972; 1977) by the federal military government which sought to place the control of the commanding height of the economy in the hands of the State and by extension to Nigerians. This led to the proliferation of enterprises. Akinsanya (1981) estimated that public enterprises increased from 250 in 1970 and 1972 to more than 1000 in early 1980s. This resulted in positive social development. Odularu (2008) thus analyses the relationship between the oil sector and Nigeria’s economic performance and finds a significant positive relationship between the oil industry and Gross Domestic Product (GDP). This is captured in the table below.

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Table 3.1.2 Twenty Most Oil Dependent Countries (Fuel Exports as a Percentage of GDP) S/N COUNTRIES PERCENTAGE OF GDP 1. BAHRAIN 50.9 2. TURKMENISTAN 49.7 3. NIGERIA 48.7 4. SAUDI ARABIA 44.7 5. TRINIDAD AND TOBAGO 41.1 6. ALGERIA 35.7 7. AZERBAIJAN 28.3 8. KAZAKHSTAN 27.0 9. IRAN, ISLAMIC REP 25.3 10. NORWAY 23.7 11. VENEZUELA, RB 22.7 12. RUSSIAN FEDERATION 21.5 13. SYRIAN ARAB REPUBLIC 19.1 14. ECUADOR 17.6 15. PAPUA NEW GUINEA 14.9 16. MALAYSIA 10.5 17. INDONESIAN 10.3 18. COTE D’IVORE 8.8 19. LITHUANIA 7.0 20. COLOMBIA 6.6 SOURCE: Ross, M. (2003:19) Nigeria’s Oil Sector and the Poor in Nigeria: Drivers of Change Program . UK: DFID

The Gross Domestic Product is measured by its output less the cost of input materials, equipments, services, etc purchased from other industries or branches of activity, deduction of any taxes, net of subsidies paid and factor payments made abroad (Odularu, 2008: 11). In addition to the GDP, oil also contributes to the enhancement of Nigeria’s purchasing power by means of local expenditure on goods and services.

Besides direct payment to the government, oil industry outgoings involves payment of wages and salaries, payments to local contractors, domestic purchases of goods and services, harbor dues, vehicle licenses, telephone and postal charges, local rents, educational grants and scholarship awards, donations and subvention and other minor social charges totaled about

₦950 million by the close of 1974 financial year.

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Also, the disbursement of significant revenue income to the government is yet another vital contribution of the oil industry to the Nigerian economy. Odularu (2008:12) notes that the substantial increase in recent years is a reflection of three features; increase crude oil production in Nigeria; the huge increase in crude oil prices and the more favourable fiscal arrangement obtained by the government as a result of its improved bargaining position over the years. Foreign exchange reserve is also a significant feature brought about by oil contribution to the Nigerian economy, as it helps to facilitate the country’s industrialization and economic development which is hinged on imports of capital goods and specialized services involving massive expenditure of foreign exchange.

Odularu (2008:13) further asserts that in many developing countries that depend on primary products, a shortfall of foreign exchange occasioned by commodity price fluctuation often hinders their economic development, but in the Nigerian case, the oil industry has helped to cushion such volatility, in that Nigeria now has substantial foreign exchange reserves and is in a healthy position of being able to finance the foreign exchange cost of her development programmes, but that the industry’s contribution to foreign exchange is not determined by the gross value of crude oil exports because the conventional method adopted by the oil corporations is to retain the entire proceeds from the exports abroad and to remit to the producing country only the amount that is required to maintain their local operations.

Furthermore, the contribution of the oil industry to the Nigerian economy is the provision of a cheap and readily available source of energy for industry and commerce, through the operations of the local refinery and the utilization of locally discovered natural gas.

Statistics provided by Odularu (2008:13, 14) shows that the Elesa Eleme refining in Rivers state which started operation in November 1965, had an initial capacity of 1.9 million tons per

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annum and was projected to attain the country’s major commodity requirement at that particular time, with the exception of bitumen, aviation gasoline and lubricating oil; later a liquefied petroleum gas plant which had an installation capacity of 15000 tons per annum was constructed in addition. In 1966, in spite of the damage wrought on it by the civil war, it was reconstructed and further equipped with 2.75 million tones capacity.

The Warri refinery was commissioned in 1978 with an installed capacity of 100,000 bpd and later expanded to 125000 bpd in 1986; the Kaduna refinery was commissioned in 1980 with an installed refining capacity of 100,000 bpd and later upgraded to 110,000 bpd in 1986.

The combined four installed refining capacity are 445,000 bpd; the objective being to eliminate the scandalous shortage of petroleum products (Odularu, 2008: 8, 14). Presently however, the refineries are operating far below their installed capacities, but it also shows the invaluable role the oil industry plays in the provision of revenues and foreign exchange.

The current estimates of Nigeria’s proven oil reserve puts it at 40 billion barrels with a production rate of 2.2 million barrels a day. The country is also believed to possess an estimated 176 trillion cubic feet of proven natural gas reserves, which is the ninth largest of such reserve in the world, coupled with an increasing global demand for energy which is projected to increase to more than 50 percent over the next two decades and the quality of

Nigeria’s oil, with its location outside the unpredictable Persian Gulf a universal demand for

Nigeria’s oil will continue to remain at top agenda for several decades to come (Ross, 2003).

Oil is a strategic world commodity which constitutes the world’s major source of energy accounting for about 39% of global energy consumption (by comparison, coal accounts for 24% of world energy use, natural gas 23%, nuclear power 7% and all other sources 8%). Oil is exceptionally vital to ground, air and sea transportation, providing about 95% of all energy

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consumption for this purpose. Additionally, petroleum is the basic component for most plastics, pesticides, paint, solvents and other essential products. In view of this crucial role played by oil in fueling the world economy, any protracted unavailability is sure to yield a global economic recession as experienced in 1974 (following the Arab oil embargo), and in 1979 (following the

Iranian revolution and 1990 (following the Iraq invasion of Kuwait). Oil is also a central factor in military strength of nations, because it supplies most of the energy used to power tanks, planes, missiles, ships, armoured vehicles and other instruments of war.

Enormous volumes of petroleum commodity are expended in executing modern combat operations which necessitates that major powers must seek access to adequate supplies.

(http://pawss.hampshire.edu/topics/oil/index.html). Highly industrialized nations requires massive amount of petroleum resources to sustain their economic hegemony. This is exemplified in the US quest for oil; the United States consumes about 20 million barrels of oil per day (MBD) or 7.2 billion barrels which accounts for 45% of petroleum products; distillate fuel oil (eg.diesel fuel) accounts for 19%, liquefied petroleum gases 10%, aviation fuel 8% and a variety of other uses combined 18% (Parry and Darmstadter, 2003). Available evidence thus shows that the United States is the world’s largest oil consumer accounting for 25.4% of world consumption (Klare, 2004; Parry and Darmstadter, 2003; Lubeck,P; Watts, M; and Lipschutz,

2001; Braml, 2007; Dewey and Slocum, 2000)

Parry and Darmstadker (2003) findings also shows that the United States imports 11.6 million barrels of petroleum per day or 59% of its consumption, compared with 23% in 1970 and that 47% of U.S oil imports currently come from OPEC countries and about half of OPEC imports come from the Persian Gulf with Saudi Arabia being the dominant exporter, while

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Canada and Mexico combined supply about half of non OPEC imports to the United States.

The table describes the scenario.

Table 3.1.3 Oil Supply and Reserves by Region, 2001 Region/Country Current Production Known Economic Reserves Million % of World Billion % of World Barrels per day Total Barrels Total SELECTED OPEC PRODUCERS IRAN 3.7 5.5 99.1 9.7 IRAQ 2.4 3.6 115 11.3 KUWAIT 2.0 3.0 98.8 9.7 SAUDI ARABIA 8.0 11.8 261.7 25.7 UNITED ARAB EMIRATE 2.3 3.3 62.8 6.2 PERSIAN GULF TOTAL 19.2 28.2 652.0 64.0

VENEZUELA 2.9 4.2 50.2 4.9 NIGERIA 2.3 3.3 30.0 2.9 NON PERSIAN GULF TOTAL 9.1 13.4 107.0 10.5 OPEC TOTAL 28.3 41.6 759.0 74.4

SELECTED NON OPEC PRODUCERS CANADA 2.0 3.0 5.4 0.5 CHINA 3.3 4.8 29.5 2.9 MEXICO 3.1 4.6 23.1 2.3 NORWAY 3.2 4.7 10.3 1.0 FORMER USSR 0.0 0.0 13.2 1.3 RUSSIA 7.1 0.4 53.9 5.3 UNITED KINGDOM 2.3 3.3 4.6 0.5 UNITED STATES 5.9 8.6 22.4 2.2 39.8 58.4 260.8 25.6 WORLD TOTAL 68.1 100.0 1018.7 100.0 SOURCE: Parry and Damstadker (2003: 34) The Cost of U.S. Oil Dependency, Discussion Paper 03-59, Washington DC: Resources For the Future

The OPEC countries produce approximately 42% of the world’s oil and of these supplies 68% come from the Persian Gulf. Saudi Arabia produced 8.0 MBD in 2001, while Iran, Iraq, Kuwait and

United Arab Emirate each produced between 2.0 and 3.7 MBD. Venezuela and Nigeria are the two largest non Gulf OPEC producers. The major non OPEC producers are Russia (7.1 MBD in

2001); United States (5.0); China (3.3); Norway (3.2); and Mexico (3.1). It is estimated that the

Persian Gulf region has about two thirds of the world’s known oil reserve that will be profitable at current prices while the U.S. has only 2 % reserves. 109

In the early 1950’s the United States was still self reliant in its natural resources, but she had consumed more than ⅓ of her total oil reserves during world war11 (Klare, 2004). So fifty years later more than 60% of the oil consumed in the U.S is delivered from abroad and the trend indicates that it will not abate in the future, thus posing a threat to U.S. national security and economic vulnerability as well as grave environmental problems. The United States transportation system’s dependency on liquid fuel and the time it will take to develop a market for new technologies would require that the U.S. would depend on the imported oil for at least several decades (Council on Foreign Affairs, 2006:14).

The EIA (2007) statistics shows that the U.S. currently obtains 15% of its imported oil from Sub-Saharan Africa, and that most of it is from Nigeria and that the U.S. intends to increase oil imports from Africa to one quarter of its total import by 2015. This corroborates the findings of the US department of energy which predicts that by 2025, the U.S. will depend on foreign countries for 70% of its oil (DOE, 2003). In 2006 alone, the U.S. imported 1.045 million barrels per day of oil from Nigeria, which is approximately 10% of U.S. crude import

(EIA, 2008). The table below shows the EIA’s projection of U.S. oil dependency.

Table 3.1.4 Showing U.S. Oil Dependency

Bbl/day Production US Import 2005 Production Production US Imports 2005 2020 2025 United States 6,830,000 12,960,000 total 9,130,000 8,120,000 18,300,000 Middle East 25,119,000 2,345,000 from 31,570,000 33,980,000 5,730,000 from West Africa 4,895,000 1,943,000 from 3,700,000 4,300,000 1,080,000 from Nigeria 2,580,000 1,060,000 (2004 3,400,000 3,800,000 N/A Source: Energy Information Administration (2006) Annual Energy Outlook, BP Statistical. Review of World Energy

This is an indication that by 2025 U.S. oil consumption is projected to increase by at least 50 percent above today’s level of 20 million bbld, and that imports are likely to rise from 12 million bbld to as much as 20 million bb/d, it also shows that more than half of these imports

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will come from members of OPEC of which 57% will be imported from Persian Gulf and about

42% from Latin America. Interestingly energy experts predict that Nigeria could provide as much as 25 percent of U.S. imports in the future (Jaffe, 2003).

Eight of the top 10 countries with largest proven oil reserves; Iran, Iraq, Kuwait, Libya,

Nigeria, Saudi Arabia, United Arab Emirate and Venezuela (Canada and Russia excepted) are members of OPEC whose oil output are expected to rise (Oil and Gas, 2005: 24). It is argued that although in the medium term, OPEC’s share of world oil production is expected to remain at 40 percent, but OPEC’s power will be most effective in the long run when non OPEC oil production declines as OPEC controls 70 percent of today’s proven reserves worldwide (Oil and Gas, 2005: 25).

This outlook seem to pose real threat to America’s energy security and economic interest when dealing with the OPEC cartel, in view of the volatile condition which prevails in the Gulf and the terrorist attacks against the United States embassies in Tanzania on August 7,

1998 as well the attack of the Twin Towers of the world Trade Center and the U.S. defense headquarter, the Pentagon in September 11, 2001 which forced America to expand its energy security policy to include the policy of Global war on Terrorism (GWOT). In acknowledging the strategic importance of Africa to the United States vital interest the U.S. changed its policy of providing logistic support for peace keeping missions in Africa to training for counter terrorism and energy security with a special focus on Nigeria which is the fifth largest supplier of oil to the United States.

With the rising competition for oil commodity, it is projected that in the next two decades, China’s oil consumption is expected to grow at a rate of 7.6 percent per year and India

5.5 percent (Klare, 2004). This scenario also necessitated America’s new energy policy which

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is to shift its supply focus from the turbulent Middle East to other areas, notably the Gulf of

Guinea as the emerging new market of which Nigeria plays a dominant role. Wihbey 2006

(cited in Lubeck, Watts and Lipshutz, 2007) opines that Nigeria’s role in the new scenario is critical because Nigeria and Angola’s oil export to U.S. exceeds that of Saudi Arabia and that

Nigeria’s oil is more preferable for its low sulfur content, most of which is offshore and therefore insulated from domestic crises and quite significantly its transportability and the location of the country which borders the Atlantic, and that locating U.S. military sub regional command in Sao Tome and Principe, will resolve U.S. security question.

Thus the National Energy Development Group, headed by former vice President

Cheney, argued that the United States should look to West Africa’s oil triangle as future source of reliable supply. Following this, in 2005, a National Intelligence Council Report noted that

“global demand for hydrocarbons will be extremely robust in the next 15 years and these

(African) countries will face the nominally happy chore of disposing of large amount of export revenue” (http://www.dni.gov/nic/confreports_africa_future.html).

Nigeria is now the biggest U.S. trading partner in Sub Sahara Africa, with its major anchor on high level petroleum imports, while leading U.S. exports to Nigeria are machineries, wheat and motor vehicles and leading U.S. imports from Nigeria were oil and rubber products.

Nigeria’s exports to the U.S. under the Africa Growth and Opportunity Act (AGOA), including its generalized system of preference (GSP) provisions were valued at $25.8 billion in the 2006 financial year, which represent a 15% increase over 2005 financial year, which was due to an increase in oil exports, while non oil AGOA trade involving leather products , species, cassava, yams, beans and wood products amount to $1.4 million in 2006 which made the U.S. the

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largest investor in Nigeria (www.geographyiq.com/countries/ni/Nigeria-economy- summary.htm).

The U.S. goods trade deficit with Nigeria was $25.7 billion in 2006, an increase of $3 billion from $22.6 billion in 2005. US goods exports to Nigeria in 2006 were $2.2 billion, up to

38% from the previous year. U.S. imports from were $27.9 billion in 2006, up from 15% from

2005, which makes Nigeria the largest export market for U.S. goods, while the stock of U.S. foreign direct investment (FDI) in Nigeria in 2005 was $874 million, down from 2.0 billion in

2004. U.S. FDI in Nigeria is concentrated largely in the mining and wholesale trade sector

(www.geographyiq.com/countries/ni/Nigeria-economy-summary.htm).

The U.S. State Department 2010 Report shows that Nigeria is the largest United States trading partner in Sub Saharan Africa with its two- way trade volumes reaching US$34 billion in 2010, representing a 51 percent increase over that of 2009. The report further indicates that the U.S. goods exported to Nigeria in 2010 including cereals (wheat & rice), motor vehicle, petroleum products and machinery were more than US$4b, while U.S import from Nigeria was over US$30b consisting overwhelmingly of crude oil. It stated that cocoa, bauxite and aluminums, tobacco and waxes, rubber and grains amounted to US$73million of U.S imports from Nigeria and that U.S trade deficit with Nigeria in 2010 was US$26b ( Punch Newspaper,

Wed. 26 Oct 2011 ).

Nigeria-U.S. trade relations are still dominated by crude oil. Nigeria is a significant U.S. trading partner, accounting as the 5 th largest supplier of oil to the United States (Dewey and

Slocum, 2000). But as pointed out by Volman (2003) investment in oil production can fuel conflict as there is significant competition to control access to oil rents and that government can afford to buy new arms. The United States needed to sustain an uninterrupted flow of oil

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commodity from Nigeria in order to maintain its hegemony; to achieve this, the U.S. has to ensure a climate of stability in Nigeria; so in 1999, the State department designated Nigeria as one of four priority countries for U.S. promotion of democracy (Dewey and Slocum, 2000).

The United States former Secretary of States, Susan Rice corroborates this, when she opines that: U.S. interest in Nigeria remains constant: “We seek a stable prosperous and democratic Nigeria that respects human rights. We hope to be in position to promote favourable trade and investment partnership in one of our largest economies on the continent” (Onuoha,

2001, cited in Odoh, 2008: 132). Similarly, George Moose, an Assistant Secretary for African

Affairs reiterated America’s policy towards Nigeria that:

i) Our principal interest is to have a stable democratic Nigeria with which the US can pursue productive cooperative relations. We do not wish to see Nigeria become a pariah state that might use its influence and resources recklessly and irresponsibly. ii) The US has significant economic interests in Nigeria, with $3.9 billion invested mainly in the petroleum sector. iii) We have a specific interest in curbing narcotic trafficking and other criminal activities centered in Nigeria. iv) We also have interest in enlisting Nigeria’s cooperation on a range of regional and international issues. v) Of central importance to all these goals, however is our interest in seeing Nigeria establishes an open, democratic system. It is our firm belief that a democratic Nigeria that respects human rights and resolves issues of governance through the democratic process will create a context within which our other interest can best be pursued (Moose 1995:1 in Odoh, 2008:119).

Odoh (2008) demonstrates that Nigeria and U.S. relations is embedded in oil, which simply assumes the rhetoric of democracy, human rights and freedom; and that the United States depends on oil imports for its industrial, military, economic and social life in order to secure its core values. This underscores that Nigeria-U.S. relations are based on oil dependency nexus.

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3.2 Nigeria / U.S. Military Aid

The United States foreign policy and its energy policy are intertwined and indistinguishable (Klare, 2008). While the United States is one of the world’s largest individual producers of oil, she does not produce nearly enough to meet the demand; during 1973 the

United States used over 17,000,000 barrels of oil every day, now it had to import over

6,000,000 barrels a day to meet its requirements The largest proven oil reserves are found in areas outside the control of the western world and its allies; apart from Venezuela, Indonesia,

Nigeria and others (Larson, 1974).

There are only two notable places which host the world’s largest known oil pools. It is the Middle East and North Africa, lands which are basically owned by Arab and the Moslem nations, while the second largest proved reserve of oil is located in the Soviet Union which had about 15 percent of the world’s total. Thus about 75 to 80 percent of all the oil reserves on earth are controlled by these nations which have political and religious beliefs that are at odds with the nations that need the oil the most; Western Europe, North America and Japan (Larson,

1974).

That oil has become a strategic weapon is glean from the fact that during the Arab-

Israel conflict in 1967 and 1973, oil embargo was effectively used against the Western nations

(particularly the U.S.) who were in support of Israel, and that consequently led to the oil shock of 1974, and reestablished the rights of the Palestinians. The logic that whoever controls the world’s supply of oil controls global power propelled the rationality behind United States foreign policy, whose objective was to suppress Soviet expansionism in the Third world and also to eliminate radical national government and communist movements, during the cold war regime. This was achieved through a carrot and stick approach. Post colonial sovereign African

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nations who were sympathetic to the United States were favoured with aids flow accompanied with cultural and technical assistance.

Volman (1997) pointed out that through financial grants and low interest loans, the U.S. government provided more than 1.5 billion dollars in arms and other security assistance to

African nations which were selected for their strategic importance for the prosecution of their cold war duet; while recalcitrant leaders were swiftly overthrown, through violent military coup d’état (Nkrumah in 1966; Sukarno and Ben Bella in 1965; Modibo Keita in 1968); at other times through overt means. Volman averred that the U.S. government conducted air strikes against Libya, prosecuted direct military intervention in Zaire and executed covert military operations against Soviet supported government in Angola and Ethiopia.

During the cold war era dictatorial regimes were foist on Africa and other developing countries. These dictatorships were often sponsored by these super powers through their transnational corporations. MacOgonor (2001) aptly noted that the authoritarian regimes were needed in Africa, Asia and Latin American countries to suppress internal insurrections which sometimes even suppress legitimate demands. He asserted that this scenario provided the immediate context for the disregard of both municipal and international law observance in

Nigeria and the rest of the Third world, which provided a suitable environment for the transnational corporations who sought to operate in environment of limited legal restriction so as to maximize profit without accountability. So in addition to their normal business operations, these corporations also engaged in covert activities in the Third world countries (especially resource endowed countries) in order to promote the interest of their home government. The rivalry between the super powers promoted violent conflicts in the Third world. Hosti (1991:

274 - 278) aptly pointed out that nearly 97 percent of all major wars and armed intervention

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between 1945 and 1989 occurred in the Third world. This fact was also corroborated by Ball

(1988:33) and Luard (1986:442-446) that the Third world is the scene of all interstate wars and international conflicts since the end of world war 11 to 1994.

The cold war logic rules out interstate conflict between the superpowers in the face of nuclear weaponry while it permits violent conflicts in the Third world. This gave rise to the argument that conflict in the Third world during the cold war years were promoted by super power policies aimed at conducting proxy wars to test the efficacy of their military technology

(Gupta, 1971). Since 1945 the use of militarism to protect the flow of oil has been a central plank of U.S. foreign policy. This is indicated in the meeting between President Franklin

Roosevelt and the Saudi King Abdul Aziz Ibn Saud on valentine’s day 1945, wherein President

Roosevelt brokered a military pact guaranteeing the King, that the United States will provide military protection for Saudi Arabia in return for special access to Saudi Arabia’s vast oil reserves (Klare, 2004). These policies were reiterated by successive American Presidents, which was articulated in Truman, Eisenhower, Nixon and Carter doctrines. It was expanded by

Reagan in 1981 to encompass internal threat which was used to justify the Gulf war of 1990.

The Carter - Reagan doctrine also led to the buildup of U.S. forces in the Persian Gulf on a permanent basis and to the establishment of the Rapid Deployment Force and the U.S

Central Command (CENTCOM). The U.S thus spends over $50 billion per year (in peace time) to maintain constant readiness to intervene in the Gulf (Collina, 2005). Klare (2004) asserts that the most stirring doctrine is from Jimmy Carter, in his 1980 state of union address, he declared that the United States would deploy military might to protect America’s access to

Middle Eastern oil. Table 3.2.1 chronicles the relationship between U.S. energy policy and its military relations with foreign countries.

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Table 3.2.1 shows a chronicle of notable dates relevant to U.S energy and foreign policy

1941-1945 Providing 6 of the 7 billion barrels of oil that fueled the Allied Forces in World War II, the United States consumes approximately 1/3 of its known oil reserves.

Feb 14 1945 Aboard the USS Quincy in the Suez Canal, Franklin Roosevel meets with Saudi King Abdul Aziz Ibn Saud and guarantees American military protection to the Kingdom in exchange for access to Saudi oil.

Mar 12 1947 President Truman, in an address to a joint session of Congress, lays out a new policy to assist nations under threat of Communism. De-classified documents reveal that oil is a major motivating factor

Jan 5 1957 President Eisenhower gives a speech to Congress warning that if the Soviet Union were to attempt to control the Middle East it would draw the US into military action

May 30 1972 President Nixon travels to Tehran to meet with the Shah of Iran. During his administration, Nixon significantly boosts military aid to the Shah, as part of a proxy strategy to maintain the safe flow of oil from the region.

Jan 16 1979 The proxy strategy loses one of its closest allies when, after months of intense protests to his autocratic rule, the Shah is forced into exile. The anti-American Ayatollah Khomeini seizes control of the country weeks later .

Jan 23 1980 President Carter, in his State of the Union Address, states that the United States will “use any means necessary, including military force,” to maintain US dominance in the Gulf. He creates the Rapid Deployment Joint Task Force, a strategic military command for the Middle East. The RDJTF would, in 1983 under President Ronald Reagan, become the Central Command .

1986-1987 During the Iran-Iraq War, Iran begins to attack Kuwaiti oil tankers in the Persian Gulf as a response to Kuwait’s economic assistance to Saddam Hussein. President Reagan reflags the Kuwaiti tankers with American flags and provides them protection by Naval escort through the Strait of Hormuz.

Aug 2 1990 Iraqi military forces invade Kuwait. In the following days, President Bush meets with his top advisors at Camp David to discuss a possible American response.

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Aug 6 1990 Secretary of Defense Cheney meets with King Fahd in Jeddah, Saudi Arabia. After providing the King with satellite photos of the Iraqi army near the border of Saudi Arabia, the King grants Cheney permission to begin an American buildup of military troops in the Kingdom. Because of the sensitivity to a large American presence from conservative Muslim leaders in Saudi Arabia, Cheney promises that the American forces will leave the Kingdom “when we were no longer needed or when we are asked. Fall 1990 Opposed to a large American presence in the Kingdom, Saudi national and associate of the Royal family Osama bin Laden pleads with the King to allow the mujahedeen, the Muslim forces organized during the war against Soviet occupation of Afghanistan, to liberate Kuwait instead of the Americans.

Feb 1991 Victory is declared after Iraqi troops are successfully expelled from Kuwait. With Saddam Hussein still in power, President Bush decides on a containment strategy requiring American troops to remain in Saudi Arabia.

1995-2000 Osama bin Laden calls on his followers to attack Americans and American interests in the Middle East. He creates a network called Al Qaeda. Terrorist attacks on American personnel occur in 4 different countries resulting in the deaths of hundreds of civilians and many American military officers.

May 17 2001 Four months after President George W. Bush’s inauguration, Vice President Cheney’s energy task force releases their National Energy Policy. Despite rhetoric of the contrary, the plan outlines a future of increased dependence on foreign sources of oil, particularly from the Middle East.

Sep 11 2001 Nineteen Al Qaeda operatives hijack four American commercial planes crashing them into the World Trade Center in New York and the Pentagon in Washington. One plane crashes in a field in Pennsylvania. Nearly 3,000 civilians are killed.

Aug 26 2002 Vice President Cheney lays out the case for a pre-emptive attack on Iraq citing Saddam Hussein’s threat to both America’s allies in the region and global energy supplies

Mar 19 2003 American forces invade Iraq. Weeks later, American forces successfully occupy Baghdad.

Jan 31 2006 In his State of the Union address, President Bush declares, “America is addicted to oil.” Feb 6 2007 The Bush administration announces plans to create an overseas regional military command in Africa.

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Jan 2008 Oil prices pass $100 a barrel.

Source: (http://www.bloodandoilmovie.com/download/Blood_and_Oil_EPK.pdf)

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Following the demise of the cold war, the European Command’s (EUCOM) strategic importance and troops also declined, but since military promotion is linked to combat experience, EUCOM officers were motivated to exploit new alternatives. The Global War on

Terror provided a viable opportunity and troops were relocated to the Sahel and the Gulf of

Guinea; but obtaining funding for the operation depended on convincing the U.S. Congress. So the Pentagon proposed several initiatives to Congress; the Gulf of Guinea, the Pan Sahel

Initiative, the Trans Sahara Counter Terrorism Initiative (TSCTI) and the Gulf of Guinea

Energy Security Strategies (Lubeck, Watts and Lipshutz, 2007).

According to EUCOM General Jones, Africa plays an increased strategic role militarily, economically and politically (Frederick, 2006). To this end U.S. military involvement in West Africa focuses mainly on three main goals (i) getting U.S. forces on the ground in order to advise and upgrade the region’s militaries in support of the GWOT; (ii) establishing maritime dominance in the Gulf of Guinea in order to secure offshore oil installations and if necessary unilaterally defending America’s energy assets; and (iii) building or subcontracting access to new air and naval bases, to provide both forward supplies, surveillance and air cover capacities (Lubeck et al, 2007:15)

The establishment of the Gulf of Guinea Energy Security Strategies (GGESS) working groups on the Delta was also propelled by Shell’s security request. In a meeting between

Former President Bush and Obasanjo in Washington on March 2006 about insurgency and criminality issues, Shell led a group of oil companies which approach the U.S. military for protection of their facilities in the Niger Delta and asserted that Nigeria may have lost the ability to control the situation. In response to this request, the Business Intelligence press

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Global Insight.Com disclosed that, should more Nigerian oil be “shut in” by militant activities, it is possible that the United States will provide security in the Gulf of Guinea to secure oil exports and that in March, this issue was discussed when Obasanjo visited Bush (Lubeck et al,

2007:19).

Shortly thereafter, in May 2006 in a reply to Nigerian journalists’ about reports of

America’s naval patrol at Shell’s Bonga oil field, Admiral Harry Ulrich admitted that

“America’s ships were patrolling Nigeria’s oil fields within the 200 mile limit. According to the Admiral, America’s is concerned for Nigeria and want to help her protect the region from the hands of the maritime criminals. In all parts of the world, the U.S. and any good nation want a safe coast for countries who are supplying their energy, and that is why we are often there. So there is nothing to fear for Nigeria” (Lubeck et al, 2007:19). The mission of the

GGESS as expressed by Linda Thomas Greenfield, American deputy assistant Secretary of

State for African Affairs is “for the U.S. and the U.K joint team to only police the offshore but also to provide training and equipment for three amphibious brigades, upgrade the training of

Nigerians in computer and radar capacity as well as strengthen the ability of maritime security to fingerprint illegal oil cargos” (Lubeck et al, 2007:19).

The campaign to locate Nigeria and the Gulf of Guinea as America’s vital interest and new energy security zone began with Paul Micheal Wihbey, a neoconservative lobbyist and energy expert who warned that Atlantic Equatorial Africa was completely disregarded as a region containing vital U.S. interest and that a new security architecture is needed to reduce and eliminate current and political threats to U.S. interest (Lubeck et al, 2007:11). In March 2000,

Wihbey submitted a strategic vision to the House Committee on Africa which called for a U.S.

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military base to be located in the Gulf of Guinea, possibly on the Islands of the republic of Sao

Tome and Principe.

He adjudged that it was needed to sustain a forward military presence such as petroleum support facilities, warehousing, deep water port and air strips that would provide the

United States with a below the horizon capability and signify a clear and long term commitment to the region which will enhance U.S. capability; following this in April 2001,

Wihbey worked with Barry Schutz, a member of the State Department’s Africa Bureau, to publish a paper which recommended the creation of U.S. military command structure in the

South Atlantic confirming the U.S. strategic interest in West Africa as the US redraws its energy supply lines for the 21 st century (Schutz and Wihbey, 2001 in Lubeck, et. al 2007).

As an evidence that this proposal gained acceptance is the reference made by Vice

President Cheney’s, in his Energy report in May 2001, that “West African oil is a valuable resource for diversifying America’s rapidly increasing energy imports”. In October 2008, the

United States of America established Africa Command (AFRICOM) to oversee U.S. policies and guarantee the protection of U.S. interests in the sub region. The official mission is stated as

United States Africa Command, in concert with other U.S. government agencies and international partners, to conduct sustained security engagement through military to military programs, military sponsored activities and other military operations as directed to promote a stable and secure Africa environment in support of U.S. foreign policy. This is well articulated in AFRICOM Posture Statement: “in accordance with U.S. foreign policy and national security objectives, AFRICOM creates, sustains and supports opportunities to assist our African partners in their efforts to build enduring security capacity to prevent or mitigate . . . instability,

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conflict, transnational threats and humanitarian disasters (U.S. Africa Command, 2009 Posture

Statement, 10)

AFRICOM hopes to achieve its objective through the end states and theater strategic interest. AFRICOM collaborates with other U.S. agencies such as Department of State (DOS),

United States Agency for International Development (USAID) which provides direction for diplomatic, economic and informational objectives, while the AFRICOM executes the implementation of military objectives of the U.S. in Africa, the Department of Defense (DoD) provides guidance for the employment of force and instructs AFRICOM to support the end states objective for the region.

Table 3.2.2: Indicates the End States End State 1 African countries and organizations are able to provide for their own security and contribute to security on the continent. End State 2 African governments and regional security establishments have the capability to mitigate the threats from organizations committed to violent extremism. End State 3 African countries and organizations maintains professional militaries that respond to civilian authorities, respect the rule of law and abide by international human rights norms

Table 3.2.3: Shows AFRICOM Theater Strategic Objectives 1. Defeat the Al-Qaeda terrorist organization and its associated networks 2. Ensure peace operation capacity exists to respond to emerging crises and continental peace support operations are effectively fulfilling mission requirements 3. Cooperate with identified African states in the creation of an environment inhospitable to the unsanctioned possession and proliferation of WMD capabilities and expertise 4. Improve security sector governance and increased stability through military support to comprehensive, holistic and enduring USG efforts in designated states 5. Protect populations from deadly contagions

In establishing a military command base, the AFRICOM ensures that its security plan tallies with Nigeria’s defense objectives in order to establish a benefit for U.S. national interests. For instance, Nigeria’s defense strategy as articulated in the Nigerian Ministry of Defense (MoD) vision is to build a modernized, professional, “well-trained military with

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adequate equipment, fire-power and communication” that is able to fulfill its constitutional responsibilities while also being able to conduct international peacekeeping. Nigeria’s stated security objectives which hinges on a well equipped professional force that is strong enough to provide internal and external security leadership in the sub region clearly relates with the AFRICOM objective to establish regional stability and to build up African surrogates. To achieve this goal, the U.S. government instituted several bilateral and multilateral military cooperation in Africa; such as the Trans-Saharan counter terrorism partnership (TSCTP); African contingency operation training and assistance program (ACOTA); international military education and training program (IMET); foreign military sales program (FMS); African coastal and border security program (ACBS Program); excess defense articles program (EDA); anti terrorism assistance (ATA); section 1206 fund; combined joint task force- Horn of Africa (CJTF-HOA); naval operation in the Gulf of Guinea; Flintlock 2005 and 2007 and Joint task force Aztec silence (Volman, 2008). The table below demonstrates the United States government’s military assistance to African countries in which the Nigerian government is also a beneficiary.

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Table 3.2.4 Shows U.S Military Aid S/N Military Program Objectives 1. African Contingency The ACOTA was designed to provide training to African military forces to improve their ability Operations Training and to conduct peacekeeping operations, even if the environment is hostile. The program is aided by a Assistance Program (ACOTA) budget of over $40 million, with of over nineteen African countries participating in the program. 2. Trans-Saharan Counter The TSCTP involve regular training exercises operated by the U.S. Army special forces Terrorism Partnership throughout the Sub region. It received $31million in FY 2006, nearly $82 million in $FY 2007 (TSCTP) and $10 million in FY 2008. 3. International Military The IMET program brings African military officers to military academies and other military Education and Training educational institutions in the United States for professional training. Nearly all African countries Program (IMET) participate in the program, it has trained 14,731 students from the African continents (Excluding Egypt) at a cost of $14.7 million 4. Foreign Military Sales Program The FMS program sells US military equipments to African countries. The US government (FMS) disburses loans to finance the purchases through the foreign military finance program, usually repayment are often waived. From FY 2006 to 2008, the continent has received approximately $85 million. 5. African Coastal and Border This program provides specialized equipment such as patrol vessels and vehicles, communication Security Program (ACBS equipment, night vision devices and electronic monitors and sensors to African countries to Program) improve their ability to police their coastal waters and borders. In FY 2006, the ACBS received almost $4 million in FMF funding and Bush administration requested $4 million in FMF funding for the program in FY 2007. 6. Excess Defense Article Program The intention of the EDA is to conduct adhoc transfer of surplus US military equipment to foreign (EDA) government, which has included the transfer of C-130 transport planes to South Africa and Botswana, trucks to Uganda, M-16 rifles to Senegal and coastal patrol vessels to Nigeria. 7. AntiTerrorism Assistance The ATA program provides training, equipments and technology to countries all around the world (ATA) to support their participation in America’s Global War on Terrorism. During the FY 2006 period Sub Saharan Africa received $9.6 million, the request for 2007 was $11.6 Million, while for 2008 it was $11.5 Million. 8. Section 1206 Fund This provision enables the US Pentagon to disburse up to $300 Million yearly to provide training and equipment to foreign military, police and other security forces to fight terrorism and improve stability. The fund has spend 500 Million in 14 African countries including Nigeria in the periods FY 2007 and 2008. Source: Volman, 2008, “Africom: The New US Military Command for Africa” Africa Security . Research Project , (http://concernedafricascholars.org/african-security-research- project/?p=12

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The United States Government engages the Nigerian State in a military pact towards the theatre security cooperation which is structured to support common national objectives based on security and stability within the West African sub region by adopting a “three prong approach” with the DoD, DoS and USAID providing action package (Ploch, 2009). Also, Loeffler (2009) avers that through the DoD, African partnership station (APS) was created to provide maritime safety and security through training, supply and provision of medical missions to military personnel in West Africa. Ludwig (2009) also noted that APS Nashville visit to Lagos, Nigeria in 2009 was very instrumental in establishing a joint hydrographic project, workshops on fishing enforcement by the Italian coast guard and dive medicine for navy divers.

Nigeria is also listed in the international military education and training program

(IMET). Through IMET, Nigerian military personnel received extensive training in U.S. military strategy, doctrine and tactics. The IMET programs also provided opportunity for members of both militaries a platform for the exchange of good governance and democracy.

AFRICOM also set up security cooperation offices, defense attaché, AFRICOM Liaison, bilateral assistance and maritime assistance officers, as well as other activities to further develop trust and partnership (Ward, 2009).

The DoD cooperates with Nigeria through the funded military and military sales programs. In these programs, Nigeria is able to receive funding to procure American made military systems to improve their security network. For the fiscal year (FY 2008), Nigeria received $1.3Million with a projected increase to $1.35M for (FY 2009). In addition, the U.S. delivered four surplus coast guard balsam class coastal patrol ships in 2003 through the excess defense program of the U.S. defense security assistance agency. These ships had a total value of more than $4.1 Million at the time they were delivered to Nigeria (Volman, 2008). The 126

following tables’ present data on U.S. financial security assistance programs for Nigeria over the past decade.

Table 3.2.5: FY 1999-2002 (Dollars in Millions) FY 1999 Actual FY 2000 Actual FY 2001 Actual FY2002 Actual FMS Agreements 271 3180 6738 8498 FM Construction 976 Sales Agreements FM Deliveries 32 43 3132 3761 FM Construction Sales Deliveries FMF 10000 10000 6000 CS Licensed 2 58 8 IMET Deliveries 90 525 663 750 IMET Number of 7 115 23 204 Students

Table 3.2.5: FY 2003-2006 (Dollars in Millions) FY 2003 Actual FY 2004 Actual FY 2005 Actual FY 2006 Actual FM Agreements 6672 4622 2318 253 FM Construction Sales Agreement FM Deliveries 3181 3330 6849 3002 FM Construction 44 38 7 Sales Deliveries FMF 1065 CS Licensed 1502 6 2509 2858 IMET Deliveries 96 926 IMET Number of 6 98 Students

Table 3.2.6: FY 2007-2010 (Dollars in Millions) FY 2007 Actual FY 2008 Actual FY 2009 Est. FY 2010 Request FMS Agreement 724 285 N/A N/A FMS Construction N/A N/A Sales Agreement FMS Deliveries 4025 564 N/A N/A FMF Construction Sales Deliveries 2 N/A N/A FMF 1200 1339 1350 1350 CS Licensed 3631 N/A N/A IMET Deliveries 695 812 850 1100 IMET Number of Students 62 35 N/A N/A Source: U.S. Defense Security Assistance Agency, Historical Fact Book 30, 2008 and US Department of State, Congressional Budget Justification for Foreign Operations, Fiscal Year, 2010 Abbreviations: CS = Commercial Sales Est.= Estimate FM = Foreign Military FMF = Foreign Military Financing FMS = Foreign Military Sales IMET = International Military Education and Training N/A = Not Available Volman (2008) gives a summary of propose U.S. military expenditure in Africa for the coming FY 2011 . 127

Figure 3.2.2 FY 2011 Budget Requests By Country The 38 million dollars for the Foreign Military Financing programme to pay for U.S. arms sales to African countries includes: 9 million for Liberia, 9 million for Morocco, 4.9 million for Tunisia, 2.5 million for Djibouti, 2 million for Ethiopia, 1.5 million for the Democratic Republic of Congo, 1.4 million for Nigeria, one million for Kenya. The 21 million dollars for the International Military Education and Training Programme to bring African military officers to the United States for military training includes: 2.3 million for Tunisia, 1.9 million for Morocco, 1 million for Kenya, 1 million for Nigeria, 1 million for Senegal, 950,000 for Algeria, 825,000 for Ghana, 725,000 for Ethiopia, 600,000 for Uganda, 500,000 for the Democratic Republic of Congo, 500,000 for Rwanda. The 24.4 million dollars for Anti-Terrorism Assistance programmes in Africa includes: 8 million dollars for Kenya, 1 million for South Africa, 800,000 for Morocco, and 400,000 for Algeria, and 14 million for African Regional Programmes. Source: (http://crossedcrocodiles.wordpress.com/2010/04/04/supplying-arms-and-military- training-the-us-gift-to-africa/).

Currently, the U.S. military patrols the Gulf of Guinea and trains Nigerian security forces in the

Delta and also “ring fence” Nigeria’s northern border with the help of American advisors

(Lubeeck et al, 2007:20). On the likely effect of such alliance, Rothschild and Lawson (1994) argues that increased military assistance by the United States may dialectically promote

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disorder as military strengthening of African states may lead to further societal disengagement, thereby weakening the states in the long term. Given the precarious security setting in the

Delta, it also seems the U.S military industrial complex benefits. Etekpe (2007) argues that whereas the cost of conflict in terms of loss of lives and properties have become too high for tolerance, the amount of money and profit from arms export/dealers of both industrial and developing countries have increased tremendously which supports the perception that arms exporters and dealers are largely responsible for over 70 percent of wars or violent conflicts especially in Africa.

He reiterates that this scenario is evident in the Niger Delta where it was alleged that the

United States used six sophisticated warships and helicopters against militant groups and that former President Olusegun Obasanjo unilaterally approved $2 billion for the importation of arms to fight militants in the Niger Delta. Also in 2009, the Yaradua’s administration procured arsenals of intelligence planes, warships and helicopter gunships from Israel, Malaysia,

Singapore, Holland and Russia to match attack by the militants ( Daily Independent , September,

15 th 2009; This Day , November,26 th 2009). The table below shows the global exporters of arms.

Table 3.2.7 Global Exporters of Weapons in 1996-2001 Ranking Exporters Exports US Share of World $Billions Trade 1 United States of America 54 45% 2 Russian Federation 21 17% 3 France 11 9% 4 United Kingdom 8 7% 5 Germany 6 5% 6 Others, including developing countries 20 17% Total 121 100 Source: SIPRI Report adopted from Human Development Report (2002:89) cited in Etekpe (2007) 129

The table shows that from 1996 to 2001, the United States and Russia have dominated the arms market, ranking first and second followed by France, accounting for 45%, 17% and 9% respectively, while all the developing nation’s share account for only a tiny fraction. Extant literature also indicates that developing nations continue to be the primary focus of foreign arm sales activity by weapon suppliers. For instance, the findings of Grimmett (2009) also shows that during the period 2001-2004, developing nations accounted for 58.4% of the values of all global arms transfer agreement, while in 2005 to 2008 developing nations account for 76.4% of all arms transfer agreement and the U.S. ranked first in arms transfer agreement with developing nations netting $29.6 billion or 70.1 % of these agreements.

In the second place was Russia with $3.3 billion or 7.8% of such agreements and

France which came third with $5 billion or 5.9 billion or 5.9% in 2008; in the area of arms deliveries, the US also ranked first with a value of 7.4 billion or 40.9 % of the value of all such deliveries, while Russia came second at $5.2 billion or 28.5% of all deliveries and the target are

OPEC. In 2008, the United Arab Emirates ranked first in the value of arms transfer agreements among developing nations weapons purchasers, concluding $9.7 billion in such agreements.

Saudi Arabia followed with $8.7 billion of such agreement.

This denotes that the arms market is a profitable industry for arms exporting countries.

Tabb (2001:98) aptly stated that “of the twenty four countries that experienced at least one armed conflict in 1997… the U.S sold weapons and provided military training to at least twenty one… at some point during the 1990s.

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3.3 Capacity of the Nigerian Government to Mediate Conflicts and Enforce International Law.

The Niger Delta is rife with conflict and these conflicts revolve primarily over resources. Although the origin of armed conflict has its root in the early mercantile era when the city state kings of the region battled British imperialist attempt to monopolize the trade in palm oil to the exclusion of the Niger Delta kings and middle men (UNDP, 2006: 346). This study however focuses on conflicts which began on the eve of Nigeria’s independence and post independent era. This is because since Nigeria attained statehood, the character of conflict has also changed. UNDP (2006: 345) noted that today the region has become far more volatile due to years of deprivation which have pushed the citizens into anger, hopelessness, cynicism and violence.

Especially noteworthy were the events which led to the nation’s independence. These events define the structure of post independence conflicts in Nigeria. The granting of independence was preceded by special delegation to London in September 25, 1957. Following recommendations of the London constitutional conference, the colonial secretary set up the minorities’ commission in September 25, 1957. This commission was headed by Sir, Henry

Willink. The commission's visit to Nigeria provided a platform for the minorities to articulate their basic needs, the most cogent was the need for a separate state to alleviate their grievances and the perceive tyranny of majority domination. This is depicted in the table below.

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Table 3.3.1 Minorities and the Willinks Commission

Minorities demand to the Duties of the Willinks Observation/findings of the Commission’s Recommendations Willinks Commission Commission Commission

1) Demand for the creation of 1) To advise what safe guard 1) The Commission found that all The general view of the Commission was that a Mid West Region. should be included in the minorities who appeared before it the interest of the minorities can best be 2) Demand for creation of constitution of Nigeria. were ethnic, not religious and all protected at the federal level where some Calabar, Ogoja and Rivers 2) Make detail recommendations expressed a fear of domination. degree of balance and compromise seem state respectively (C.O.R) for the creation of one or more 2) That in an Ogoja state, the essential. The Commission therefore a) Ogoja region comprising states. existing minority would still be a recommended that: Ogoja province. 3) To specify the precise area to be minority vis-à-vis the Ibos in the 1) No further delegation of powers to the b) Cross River state which included in such state or states. province and that there was little Region. included Calabar province and 4) To recommend the support for the idea among both the 2) One strong police force to be sorely and parts of Ogoja. governmental and administrative Ibos and non Ibos. directly under the control of the federal c) Rivers state consisting of structure most appropriate for it. 3) That there was also a fear that if government. Rivers province with some 5) To assess whether any new state the Ogoja was included in C.O.R 3) Declaring the Niger Delta as a special area additions. recommended would be viable states it would be dominated by Delta. d) Calabar, Ogoja Rivers from an economic and Efiks and Ibibios. 4) Instituting a board which would initiate which would include the three administrative point of view and 4) That the support for Cross River schemes to supplement the normal provinces except the two what effect of its creation would be seemed to be an attempt by NCNC development of the area. divisions of Abakiliki and on the regions from which it would to break up the C.O.R state and not 5) The setting up of two minority area, the Afikpo. be created and on the federation. to be a serious factor. Edo speaking area around Benin and the old 5) That there were grave objections Calabar province. to the demands for Rivers state. 6) The embodiment of fundamental human People of Ahoada division rights in the constitution. expressed themselves strongly 7) Institution of Muslim and non Muslim against it. The Ogonis preferred courts in Northern Nigeria. Rivers state to C.O.R but the 8) Subsidizing the rehabilitation and prevailing sentiment was an area in replanting of old rubber plantation. which the Ijaws could be together 9) Institution of a commission for the conduct and be sure of getting the attention of elections. which they thought had so far been 10) Institution of a judicial service lacking commission for the appointment of judges. 11) Centralized control of prisons. Source: Cf. From Ojiako, J.O (1981: 40-46) Nigeria: Yesterday, Today and . . ., Onitsha: Africana Educational Publishers Nig. Ltd.

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The report of the Willinks Commission showed that the minority had genuine ground for fears and that the region was actually ‘poor, backward and neglected’, but surprisingly, the

Willink Commission acted contrary to their expectation. The Willinks Commission stated that, the minorities who have appeared before us have thought of separation as a remedy for their troubles, but unity might have the same effect, and though unity cannot be manufactured by commission, machinery can be devised which aims rather at holding the state together than at dividing it. The commissioners believe that while the first object of their recommendations must be to allay fears, it should be combined with a second objective, which was to maintain the unity of Nigeria and thus enable the federation to play a great part in world affairs,

The Commission therefore asserted that the best that can be done is to balance power within the country so that the majority may be less tempted to use power sorely for its own advantage. They further reiterated that while a number of states were suggested as remedies for the fears which minorities expressed, it concluded that the proposals would either include dissentient minorities, which would constitute fresh problems or would be too small to make satisfactory states (Ojiako, 1981: 40-46).

Two variables are discernable, first, the inability of the Willinks commission to endorse a state or a region for the minorities’ in the Niger Delta indicates the limitation of dialogue; second, was a lack of political will by the state to implement development agenda in the neglected region. These were the factors which seem to ignite an armed revolt against the

Nigerian State. In February, 23 rd 1966, late Isaac Jasper Adaka Boro, declared a separate Niger

Delta Republic for the minorities in the Niger Delta. Boro (1982:71) declared that “the Ijaws as may be seen from the list of Nigerian tribes were victims of a woolly administration. Year after year we were clenched in tyrannical chains and led through a dark allay of perpetual political 133

and social deprivation. Strangers in our own country; inevitably, therefore, a day would have to come for us to fight for our long denied right to self determination.”

To prosecute this objective, Boro set out together with Owonaru and comrade

Nottingham Dick to recruit 150 men who were trained in the use of firearms and explosives in the creeks and bushes from their camp at Taylor Creek under their organization, the Niger

Delta Volunteer Force (NDVF) and they split into three divisions. With this arrangement, Boro launched an insurgency campaign. The troops were charged with a war call: today is a great day, not only in your lives but also in the history of the Niger Delta. Perhaps it will be the greatest day for a very long time. This is not because we are going to bring the heavens down, but because we are going to demonstrate to the world what and how we feel about oppression. .

. (Boro (1982:71, 72)

The NDVF invaded police station at Yenagoa, raided the armoury and kidnapped some officers, blew up oil pipelines, engage the police in a gunfight and declared the “Niger Delta

Republic”. The revolt was however suppressed by the Nigerian state and Boro and his men were convicted. Series of events after the declaration followed by a military coup d’état and counter coup also resulted in the declaration of the sovereign state of Biafra which escalated into a full scale civil war in 1967. In these two separate events for self determination, the

Nigerian state successfully crushed the rebellion. However in the case of Biafra, it was a regional attempt to secede, while in the Niger Delta it was only a small group. The federal

Government through these victories establish itself has having the monopoly of violence (Ake,

1997; Ibeanu, 2005; Peterside, 2006).

The monopoly of violence exercised by the state forced the Niger Delta region to be quiet for over two decades; but a different type of conflict was also simmering. These conflicts

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were occasioned by environmental hazards and loss of livelihood associated with oil production. Following a regime of state repression over community protest against oil pollution and environmental degradation, armed resistance by disparate youth groups were launched as part of actions to force concessions in relation to self determination, regional autonomy, resource control and oil benefits; the region became the scene of the most volatile military operation since the Nigeria civil war (See Appendix 1).

A closely related issue generating armed resistance is the renewed clamour for resource control which engenders feelings of economic dislocation and marginalization as well as the need for local empowerment. The tables in appendix 2, summarizes the revenue allocation formula since 1946. According to Adilieje (2008: 964, 965) the establishment of various commission on revenue allocation since 1946; the promulgations of numerous decrees and other kinds of review have not resolved nor diminished the sensitivity and volatility of the issues relating to revenue allocation.

He however, noted that the Raisman Commission of 1958; the independence constitution of 1960; and the 1963 Republican constitution all provided for the retention of fifty percent of proceed from the mineral extraction by the regions, while thirty percent went to distributable pool account where all revenue are collected for sharing by all regions including the resource producing regions, and twenty percent went to the central government. The emergence of oil as the mainstay of the Nigerian economy set in the politics of revenue allocation as highlighted in the table above. The Shagari government that instituted the Okigbo

Commission reduced the derivation from twenty to two percent, which had earlier on been reduced from 50 percent to 45 percent by General Yakubu Gowon regime which also took over all revenue from off-shore sources, also a further reduction from 45 to 20 percent by the

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Murtala/Obasanjo government was recorded, while the Buhari/Idiagbon regime slashed it to 1.5 percent, thereafter the Babaginda government increased it to 3 percent, which was followed by a further increase to 13 percent by the Obasanjo administration (Ibaba, 2005: 99). Ibaba (2005:

100) argues that the implication of this is the transfer of oil wealth out of the Niger Delta for the development of other areas.

A National Sovereign Conference organized by President Obasanjo’s administration in

2005, took on the question of revenue allocation and the principles by which oil wealth was to be distributed. The dominant ethnic majority refused to accede to the demand of the minority from the Niger Delta region for a consideration of an increase derivation to correspond proportionately to the revenue generated from the region, as a result the conference ended in fiasco as the delegates from the Niger Delta walked out (Lubeck, Watts and Lipschutz, 2007:9).

Since, late 2005, the situation in the Delta has only worsened. Following attacks on oil installation and the taking of hostages in late December 2005 and early 2006, the Movement for the Emancipation of the Niger Delta (MEND) began calling for the international community to evacuate from the Niger Delta by February 12 th or face violent attack. Two weeks later, the group claimed responsibility for attacking a federal naval vessel and for the kidnapping of nine workers employed by the oil servicing company Wilbros, allegedly in retaliation for an attack by the Nigerian military on a community in the Western Delta (Lubeck, Watts and Lipschutz,

2007:9).

The findings of the Technical Committee on the Niger Delta (2008) shows that Nigeria lost about ₦8.84 trillion or $61.6 billion to oil theft and sabotage in the region from 2006 to

2008. The finding chronicles the cost of the crises on each attack on oil installations; it indicates that on January 11, 2006, militants attacked Shell Petroleum Development (SPDC)

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facility in Rivers State and kidnapped four oil workers which resulted in the loss of 120,000 barrels per day. On that same day, the militants bombed a major crude oil pipeline operated by

SPDC in the Forcados in Delta state which also recorded an additional loss of 100,000 bpd

(Newswatch, 2009:13).

Another recorded incident was the attack of an oil vessel near the Bonny Island in

Rivers State, on January 16, 2007 wherein 187,000 bpd was lost. It also led to a major spill at a pipeline feeding the bonny export terminal on March 6, 2007 with a loss of 150,000 bpd. On

May 3, 2007, following the kidnap of eight expatriate oil workers by the Movement for the

Emancipation of the Niger Delta (MEND) from an offshore vessel in Rivers State, Nigeria lost

50,000 bpd. This was also followed by a further attack of a Saipen operation site in

Okono/Okpoho, Rivers State which led to a shutdown in production and a loss of 42,000 bpd coupled with the injuring of several oil personnel ( Newswatch, 2009:13).

Also indicated is the attack on three major oil pipelines operated by Agip Oil Company in Brass and Akassa, Bayelsa State, which led to a loss of 170,000 bpd, including the attack on the country home of Goodluck Ebele Jonathan in Ogbia, Bayelsa State which also cost the country 77,000 bpd. The blowing off of two oil flow stations controlled by Agip in the

Forcados in April 2, 2008, resulting in the death of 11 soldiers and the loss of 120,000 bpd.

Other recorded attack includes the bombing and part destruction of SPDC’s Bonga facility by the MEND forces on the deep offshore oil field in Rivers state, resulting in the death of over

100 persons ( Newswatch, 2009:14). The Shell’s Bonga oil field is reported to be Nigeria’s biggest oil field developed by Shell costing $3.6 billion with a production capacity of 225,000 bbl per day (10 percent of Nigeria’s production) and 150 million cubic feet per day of natural gas (Lubeck, Watts and Lipschutz, 2007:19)

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The social as well as the economic cost of armed conflict in the Niger Delta is tragic for the country. The NNPC report estimated that between 1998 and 2003, there were four hundred “vandalizations” on company facilities each year (and 581 between January and

September 2004) with oil losses amounting to $1billion annually (Clear Water Research

Services, 2005 in Lubeck, Watts and Lipschutz, 2007:9). Similarly, Kemedi, Von and Davis

(2005) pointed out that since 1999, the cost of instability in the region has been $6.8 billion in lost oil revenue; also Ledun Mitee, Chairman of the Niger Delta Technical Committee, opine that; “by the first nine month of 2008, the quantity of oil lost per barrel was about $20.7 billion, which is also the exclusive amount of another estimated $3billion lost to oil bunkering over the first seven months of 2008.

He further asserted that they are unaccountable costs in human misery with about 1000 persons killed within the same period and another 300 taken as hostages” (Newswatch,

2009:12,13), and according to Amnesty International (2005) oil related deaths in the Niger

Delta in 2003 and 2004 were 680 and over 1000 respectively. These reports corroborate

Ikelegbe (2005) findings that an economy of conflict exists in the Niger Delta. This has led to a resistance against the political economy of oil since the 1960s and has metamorphosed from low intensity conflict from 1997 to a regime of violent armed rebellion (Appendix1).

The root of all discrepancies and disarticulation seems to be located in the 1978 Land Use

Act. Section 1 of the Act, stipulate that all land comprised in the territory of each state in the federation are hereby vested in the Governor of that state and such land shall be held in trust and administered for the use and common benefit of all Nigerians in accordance with the provisions of this Act. Section 2 (1)a provides that all lands in urban areas shall be under the control and management of the governor of each state and (b) all other land shall subject to this

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Act, be under the control and management of the local Government within the area of jurisdiction of which the land is situated.

Section 5 (1) grant a wide range of powers to the governor of a state to perform the following in respect of all land whether urban or not in an urban area;

(a) To grant statutory rights of occupancy to any person for all purposes;

(b) To grant easements to statutory rights of occupancy;

(d) To revise the said rental –

(i) At such intervals as may be specified in the certificate of occupancy; or

(ii) Where no intervals are specified in the certificate of occupancy at any time during the

Term of the statutory rights of occupancy;

(e) To impose a penal rent for a breach of any covenant in a certificate of occupancy

requiring the holder to develop or effect improvements on the land subject to the

certificate of occupancy and to revise such penal rent as provided in Section 19 of this

Act.

(f) To impose a penal rent for a breach of any condition, express or implied, which

precludes the holder of a statutory right of occupancy from alienating the rights of or

any part thereof by sale, mortgage, transfer or possession, sub-lease or request or

otherwise however without the prior consent of the governor.

Also, Section 6 (1) grants local government powers in respect of land not in an urban area: (a) to grant customary rights of occupancy to any person or organization for the use of land in the local government areas for agricultural, residential and other purposes. The judicial interpretation of this section is articulated in the case of Akinloye v. Oyejide, in which the

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judge stated that . . . the use of the word ‘vested’ in section 1 of the Land Use Act 1978 has the effect of transferring to the governor of a state the ownership of all land in the state

On the literal reading of the Land Use Act 1978, I am of the view, and I so hold that the intelligible result is to deprive citizens of this country of their ownership in land and vest same in the respective governors. The presumption that the law makers does not desire to confiscate the property or to encroach upon the rights of persons is, in view rebutted on the clear and unambiguous provision of the Act

Similarly, in determining whether the provision of Land Use Act entitles customary owners to be granted declaration of title to a parcel of land against their customary tenants, the

Supreme Court in Abioye v. Yakubu, held that:

(i)The Land Use Act has removed the radical title in land from individual Nigerians, families and communities and vested the same in the governor of each state of the federation in trust for the use and benefit of all Nigerians (living individuals, etc, with rights of occupancy); and (ii) That the Act has also removed the control and management of lands from family and community heads/chiefs and vested the same in the governors of each state of the federation (in case of urban lands) and in the appropriate local government (in case of rural lands)

Thus Ebeku (2001) observes that the Land Use Act impacts the people in two fundamental areas; the loss of power by traditional authorities and the loss of right to compensation. He noted that before the promulgation of the Act, oil companies that obtain mining access from the federal government approached the oil bearing communities for a right of access to the land for its operation, which was a way by which the communities had some sense of participation in oil operations as they received some compensation for granting access

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and any damage to land and any surface rights thereon, but with the Land Use Act, the sense of participation had since been lost since the unity of land rights with oil rights in 1978. Ibaba

(2005: 79,80) noted that this law strips the people of the ownership of their oil and gas resources thereby denying them the opportunity to direct their destiny and also fail to adequately protect the Niger Delta environment giving rise to environmental degradation which inhibit development.

This leads to the fundamental issue of rights. Every legal system seeks to protect the rights of its subjects in the municipal system. A legal right imposes an obligation to do or abstain from doing an act to the possessor of a right. Legal rights at the international level vest certain privileges on the entity and imposes obligation on states and other legally recognized entities to respect and promote those rights. The progress of human rights is therefore marked by increasing international concern and respect for these rights. The horrendous effect of the

Second World War and the subsequent formation of the United Nations Organization led to a universal recognition of human rights as belonging to all people by the very fact of their humanity (Umozurike, 1993).

Cranton (1973) thus defines human rights as moral rights, which all men everywhere at all times ought to have and something which no one may be deprived of without grave affront to justice, something which is owing to every human being amply because he is human.

Wasserstrom, (1964: 50) highlights four essential characteristics which a human right must have:

First, it must be possessed by all human beings. Second, because it is the same right that all human being possess, it must be possessed equally by all human being. Third, because human rights are posses by all human being. We can rule out as possible candidates any of those rights,

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which one might have in virtue of occupying any particular status or relationship, such as that of parent, president . . . and fourthly, if there are any human rights, they have the additional characteristic of being assertable, in a manner of speaking against the whole world

Starks, conceives human rights as internationally recognized norms for behavior of states and other persons in international law (Stark, 1989). Buergenthal (1988:1) refers to human rights as the law which deals with the protection of individuals and groups against violations by government. Saro Komene (2004:17) contends that, human rights when held by every person, against the state and society provide a framework for political organization and a standard of political legitimacy, and that in a context in which they are systematically denied, claims of human rights may be positively revolutionary. This can be well demonstrated by the agitations of the Movement for the Survivors of the Ogoni People (MOSOP), the Ijaw National Congress

(INC); and other splinter groups located especially in the Niger Delta.

Accordingly, Parnikkar (1982) traces the history of human rights to the Western

World’s struggle for citizen’s rights since the Middle Ages, following King Alfonso IX of

Leon’ rights to life, honour, home and property in 1188, to the Magna Carter of King John of

England in 1215, the 1689 Bill of Rights; 1776 Virginia Bill of Rights; the 1789 American Bill of Right and the 1789 Paris Document. He noted that, western man has metamorphosed from corporate belonging in a community of blood, work and historical destiny based on practically accepted custom and theoretically acknowledged authority to a society based on impersonal law and ideally free contract to the modern state, for which explicitly rational norms and duties are required. This metamorphosis of human rights from one form of collective life to another more modern form is said today to have acquired a worldwide character.

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On the other hand, Charles Beitz (1980) looks at the philosophical foundation of human rights and relates it to the doctrine of natural rights propounded by John Locke. Beitz calls it the natural right model. For Locke, natural rights were rights that people possess in a state of nature devoid of positivism. In Locke’s word, the state of nature has a law of nature to govern it, which is that, law teaches all mankind, who will but consult it that being all equal and independent, no one ought to harm another in his life, health, liberty or possession. From this level, Beitz moved to the social justice model of human rights. According to this model, human rights are entitlements to the satisfaction of various human interests that would be guaranteed to members of a group by principles of social justice appropriate to that group. He further reiterates that human rights are rights secured by justice and the international commitment to implement the human rights and that the manifestos is in fact an international commitment to encourage the development of just institutions in every society.

John Rourke (1997) also expounded on this debate, by differentiating the Universalists from the positivists. According to him, the Universalist comprises the theological and ideological and derives their root from natural rights which holds that the fact of being human carries with it certain rights that cannot be violated in extremis. To him, the universalists believes that there is a single prevailing set of standards of moral behavior on which human rights are based; while for the positivists, rights are the product of culture, anchored on the premise that no single standard of human rights exist or is likely to exist short of the world becoming completely homogenized culturally. Thus he contend that many of these western values such as individualism and democracy are no held as strongly as in other cultures and no matter how high minded it is, western attempt to impose them as imperialists.

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While this raises the problem of the applicability of human rights. Rhoda Howard attempt to reconcile this seeming contradiction, She set out to conceive social justice as a means by which all members of a society are treated in a fashion considered respectful of their culturally defined social station, contending that justice consists:

Of rules of appropriate social behavior and rules of fairness that might not contain the basic principles of human rights namely that rights are individual and that everyone regardless of status is equally endowed with them. But some cultural relativists argued that all culturally bound systems of social justice human rights system no matter what their substantive content or overarching principles. In making this claim, relativists undermine the actual meaning of human rights and leave the door open to severe abuses of individuals in the name of the rights of the collectivity or the community. (Howard, 1992:81-102)

Howard (1993) therefore asserts that the concept of cultural relativism is used by both traditionalists and communitarians as a defense of their way of life against the individualism and alienation that liberal human rights are thought to imply. She notes that the notion of relativism that is implicit in such argument actually constitutes cultural absolutism. Arguing from a social justice conception, Howard opines that a system of justice based on human rights is one particular system, which can mean that there can be other system of justice not based on human rights.

In the views of Wiegel George, those who believe in the cultural relativism of rights also tends to view attempts to impose standards of rights by one culture on another as cultural imperialism (George, 1995). Suu Kyi (1995) however argues that it is precisely because of the cultural diversity of the world that it is necessary for different nations and people to agree on those basic human values which will act as a unifying factor. As for the cultural imperialism issue, she contend that when democracy and human rights are said to run counter to non 144

western culture, such culture are usually defined narrowly and presented s monolithic, to avoid this, She counsels, it is possible to conceives of rights, which place human worth above power and liberation above control. The power and control she wishes to subordinate are not just those of government but also those of one ethnic group, race, religion, sex or other societal faction over another.

The concept of the universality of human rights has become one of the corner stone’s of the international human rights framework as contained in the 1993 Vienna Declaration and

Programme of Action, which boldly asserted that the universal nature of human rights is beyond question. This appears to be borne out by the practice of states in adopting the principles enshrined in the Universal Declaration of Human Rights into national constitutions or national laws or in relying upon it in their relationship with others and intergovernmental organizations (Vienna Declaration, 1993).

Nigeria is a signatory to a number of international human rights treatises and conventions which are both soft and hard law instruments; it nonetheless obligates the Nigerian government to investigate human rights violations in the country and provide remedies for egregious violations of human rights. Government’s obligation in this regard are articulated in

(a) Article 2 (3) of the International Convention on Civil and Political Rights (ICCR)

(b) Article 12 of the Convention Against Torture (CAT)

Child (CRC)

(d) Article 2 (d) in connection with Article 4 (a) and (c) of the International Convention on

the Elimination of All Forms of Racial Discrimination (CERD)

(e) Article 8 of the Code of Conduct for Law Enforcement Officials (CCLEO)

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(f) Article 22 of the Basic Principles on the Use of Force and Firearms (BPUFF)

(g) Article 9 of the Principles On Effective Prevention and Investigation of Extra-legal,

Arbitrary and Summary Executions and

(h) The African Charter on Human and People’s Rights (Oputa Panel Report, 2002).

This table provides a summary of the level of implementation of the status of the several international instruments that Nigeria has acceded to, ratified and domesticated.

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Table 3.3.2 International Standards and Codes Signed, Ratified and Domesticated by Nigeria

S/N International Standards and Codes Remarks 1. The Charter of the United Nations Nigeria is a member of the United Nations 2. The International Covenant on Civil and Political Rights Ratified July 29, 1993; not domesticated but Constitution contains the full complement of civil and political rights. 3 The International Convention on the Elimination of All forms of Racial Ratified 16 October 1967; not domesticated. Discrimination 4 The Convention Against Torture and other Cruel, Inhuman or Accede 28 June 2001; not domesticated Degrading Treatment or Punishment 5. Optional Protocol to the Convention on the Rights of the Children , the N/A involvement of Children in Armed conflict 6 The International Covenant On Economic, Social and Cultural Rights Ratified, 29 July; not domesticated 7 The Convention on the Political Rights of Women Not signed, ratified or domesticated 8 The Optional to the Convention against Torture and Other Cruel, Not signed or ratified Inhuman or Degrading Treatment or Punishment 9 The Statute of the International Criminal Court Ratified; not domesticated

10 The AU Convention on Preventing and Combating Corruption Signed Dec.17, 2003; not ratified 11 The Geneva Convention Relative to the Protection of Civilian Persons Not Signed, ratified or domesticated in Times of War 12 Optional Protocol to the Convention on the Rights of the child on Sale N/A of Children, Child Prostitution and Child Pornography 13 The Optional Protocol to the Convention on the Rights of the Child on N/A the Involvement of Children in Armed Conflict 14 The Convention against Corruption N/A 15 The Convention for the Protection of Rights of Migrant Workers Not signed, ratified or domesticated 16 The Convention Relating to the Status of Refugees N/A 17 The African Charter on Human and People’s Rights Ratified in 1990 and domesticated 18 OAU Refugee Convention Ratified 19 The African Charter on the Rights and Welfare of the Child N/A 20 The Constitutive Act Convention of the African Union N/A 21 The Protocol on the Rights of Women in Africa N/A 22 The NEPAD Framework Documents Full Party 23 The AU Peace and Security Protocol Signed 5 July 2003; not ratified or domesticated Source: Ibeanu,O and Egwu,S.(2007:46-47) Popular Perceptions of Democracy and Political Governance in Nigeria , Abuja: Centre for Democracy and Development. 147

International law obligates state parties to not only refrain from, but also to prevent third parties, including companies from violating the rights of the citizens contained in these treatises. Ibeanu and Egwu (2007) noted that in the case of Nigeria, there is a gap between her commitment in signing these treatise and actual enforcement at the domestic level. They contend that despite the fact that the African Charter on Peoples and Human Rights is the only instrument that has been domesticated its adherence is hardly factored into the official conduct of government.

This is validated by the result of their survey which shows 56.5% of respondents indicating that the provisions of social and cultural rights in the constitution are rarely or never respected, 45.6% indicating that civil and political rights in the constitution are rarely or never respected, while, 66.4 % believe that human rights violations are rarely or never monitored and reported by government and 78.8% believe that citizens rarely or never obtain full justice in courts regardless of social status. The study also showed that 45.1% of the respondents have a positive view of the role of civil society organizations in monitoring and reporting human rights violations while only 17.1% said that they never or rarely did (Ibeanu and Egwu, 2007:139).

The Right to health is guaranteed, under the African Charter: Article 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. Article 24: All peoples shall have the right to a general satisfactory environment favourable to their development .

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Similarly, the International Covenant on Economic, Social and Cultural Rights guarantees the right to health. Under Article 12(1) it provides for the right to the highest attainable standard of physical and mental health. CESCR, General Comment No.14 (2000) specifies that the “right to health embraces a wide range of social-economic factors that promote conditions in which people can lead a healthy life, and extends to the underlying determinants of health, such as . . . a healthy environment.” It further requires “States to prevent and reduce the population’s exposure to harmful substances such as... harmful chemicals or other detrimental environmental conditions that directly or indirectly impact upon human health.”

Gas flaring violates the right to health, noise pollution; the intense heat from flaring, the black dust and soot that corrodes people’s home and the acid rain violates the people’s right to live in a healthy environment. The right to adequate standard of living; which comprises food, clothing and housing is guaranteed in the International Covenant on Economic, Social and

Cultural Rights (ICESCR Art.11), and the Convention of the Right of the Child. CRC

(Art.24.2c) provides that a child is to be given “adequate nutritious foods and drinking water, taking into consideration the dangers and risks of environmental pollution”

Oil spills and waste materials from transnational corporations damages water sources, fisheries, agriculture and associated processing industries which the communities rely on, thus reducing their standard of living. Article 6 of the Covenant requires State parties to ensure the right of every one to the opportunity to gain their living by work which they freely choose or accept and to take appropriate steps to safeguard this right. Pollution and pipelines linking various flow stations across farm lands has rendered land economically useless. This implies that the individual is deprived of property and the means of subsistence. The right to development is also violated, as provided for in the African charter, (Art.22) as forced poverty

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and environmental degradation stunts economic and social progress. The Convention of the right of the Child, CRC (Art.6) guarantees the child a right to survival and development.

The right to life is protected in the International Covenant on Civil and Political Rights

Art.6; the African Charter on Human and People’s Rights Art.4 and the 1979 Constitution

Art.30 (33). Inhuman and degrading treatment is also prohibited in ICCPR Art.7, the ACHPR

Art.5 and the 1979 Constitution Art.31 (34); however, the conduct of oil transnational corporations and the government had destroyed life sustaining livelihood.

Article 9, of the UN Principles on the Prevention and Investigation of Extra Legal,

Arbitrary and Summary Executions provides that “there shall be thorough, prompt and impartial investigation of all suspected cases of extra legal, arbitrary and summary execution including cases where complaints by relatives or other reliable reports suggest unnatural deaths”. According to this provision, the Nigerian state is capable and responsible for providing thorough, prompt and impartial investigation of cases of extrajudicial, arbitrary and summary executions by competent investigators. Prosecutions involving families of the deceased and their lawyers should follow the investigation. However the Nigerian government had placed its military powers at the disposal of the oil corporations who had conducted raids in the communities. The security forces had killed individuals and terrorized communities and the use of unbridled force within the region has therefore, led to several deaths and thus a violation of the right to life.

Following, the violations of these aforementioned rights which generated conflicts between host communities and the oil transnational’s, a case was brought by the Social and

Economic Rights Action Center and the Center for Economic, and Social Rights v Nigeria, on behalf of the Ogoni community before the African Commission on Human and People’s

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Rights. The complaint listed, the disposing of toxic wastes into the environment and local water ways; failure to maintain oil infrastructures leading to countless avoidable spillages which contaminates water, soil, and air with its long term effect on the community, the exploitation of oil reserves in Ogoniland with no regard for the health or environment of the local communities and the failure to protect the Ogoni population from the activities of the NNPC/Shell consortium.

In a landmark decision of the 30 th ordinary session of the African Commission of

Human and People’s Rights , Banjul, 13-27 October 2001, Nigeria was found to have breached the right to non-discrimination (Art 2), the right to respect for life and the integrity of person

(Art 4), the right to property (Art 14), the right to health (Art 16) the right to protection of the family unit (Art 18(1), the right of people to freely dispose of their wealth and natural resources

(Art 21), the right to food, the right to housing, and the right to a general satisfactory environment favourable to their development (Art 24). The commission therefore called on the

Nigerian government to enforce adequate compensation to victims of the human right violations, and to undertake a complete clean up and remediation of lands and rivers damaged by oil explorations including the provision of information on health and environmental risks as well as meaningful access to regulatory and decision making bodies for communities likely to be affected by oil activities.

The recognition of corporate liability by the African Commission of Human and peoples Right and the fact that these violations still persist despite the ACHPR verdict provides a clear indication of the inability of the Nigerian government to enforce international law.

Ibeanu and Egwu (2007: 49, 50) also pointed out that: “Nigeria lags behind in its reporting obligations under all the major international human rights treaty applicable to it. . .Nigeria

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acceded to the International Covenant on Civil and Political Rights on July, 29 th , 1993, but fail to meet her periodic reporting which was due on 28 th October, 1999. She also failed to meet her second periodic reporting obligation which was due on 30th June 2000. . .”

The Nigerian domestic legal architecture also authorizes adherence to the rule of law, promotion and protection of fundamental human rights, including the provision of effective remedies to victims of human rights violations and the independence of the judiciary and its capacity to enforce human rights and mediate conflicts (Constitution of the Federal Republic of

Nigeria, 1999). Similarly, Section 5, of the National Human Rights Commission establishes the duty of the Nigerian state to investigate and act against egregious rights violations. Founded in

1995 as a requirement by the Vienna Conference of 1993 to empower every state party to monitor, promote and protect human rights. The Commission sets forth:

i) To facilitate Nigeria’s implementation of its various treaty obligations, including but not limited to, the Universal Declaration of Human Rights, the International Convention on the Elimination of all Forms of Racial Discrimination and the African Charter on Human and Peoples’ Rights; ii) To create an enabling environment for extra-judicial recognition, promotion and enforcement of all rights recognized and enshrined in the constitution of the Federal Republic of Nigeria and under the laws of the land; iii) To provide a forum for public enlightenment and dialogue on Human Rights issues and to limit controversy and confrontation over allegations of human rights violation by public officers’ and agencies and to reaffirm the sacred and inviolable nature of human and other fundamental rights (Ibeanu and Egwu (2007: 125).

While, communities affected by the negative impact of oil production in the Niger Delta have resorted to domestic legal provisions, the results indicate that courts have rarely given injunctions; In Irou v. Shell-BP, an often-cited unreported case, the judge refused to grant an 152

injunction in favour of the plaintiff whose land, fish pond and creek had been polluted by Shell-

BP. The judge explained his reasoning for not granting an injunction as follows: "To grant the order ... would amount to asking the defendant (Shell-BP) to stop operating in the area. ... The interest of third persons must be in some cases considered, for example, where the injunction would cause stoppage of trade or throwing out a large number of work people". The judge ruled that nothing should be done to disturb the operations of the oil industry which "is the main source of this country's revenue". In other words, the economic interests of the oil industry appeared to be more important to the judge than the course of justice (Frynas, 1999: 122).

In Chinda v. Shell-BP, the plaintiffs asked for an injunction on gas flaring. The judge rejected the request by saying: "The Statement of Claim demands an order that Defendants

(Shell-BP) refrain from operating a similar flare stack within five miles of Plaintiffs' village, an absurdly and needlessly wide demand" (at 14). The above judgments indicate that Nigerian courts are very reluctant to grant an injunction in oil-related cases. For oil companies, this interpretation of the law by Nigerian judges is favourable because the law allows them to continue with their exploration and production activities, notwithstanding the impact of oil operations on the environment or the local people. Said Shell's legal manager in Nigeria, J. A.

Odeleye, in 1998: "The law is on our side because in the case of a dispute, we don't have to stop operations".'" According to Odeleye, in early 1998 not a single injunction was in place against Shell in Nigeria (Frynas, 1999: 123); and even when an injunction is granted, the communities are often unable to benefit. In Jonah Gbemre v. SPDC, the plaintiffs, with the assistance of nongovernmental Organization brought a suit against SPDC to stop gas flaring in the Iwerekan community in Delta state. On 14 November 2005, the Federal High Court, sitting

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in Benin ruled that gas flaring was a violation of the constitutionally guaranteed rights to life and dignity, and ordered that flaring end in Iwerekan. SPDC opted for stay of execution.

In granting a conditional stay of execution three conditions were attached that requires

SPDC/NNPC to stop gas flaring activities in Nigeria by 30 th April 2007, and that SPDC should produce a detailed plan of action which will indicate how they would end gas flaring in

Iwerekan. However, SPDC disobeyed the court decision, and the judge was transferred to another district and with a missing court file, the company subsequently obtained a further stay of court order with no known conditions attached and gas flaring is still subsisting in Iwerekan communities (Amnesty International, 2009:77).

Also, in a petition submitted by the Ijaw Aborigenes against Shell in 2003, the House of

Representative ordered Shell Petroleum Development Company to pay the sum of $1.5 billion to Ijaw Aborigines of Bayelsa state as compensation for the untold hardship and environmental devastation it has brought the Ijaws since 1956. The executive secretary of the National Human

Rights Commission, Bukhari Bello in calling on the oil company to comply with the recommendation of the legal advisory panel listed the findings of the panel:

That oil spillages and other environmental incidents have occurred in the facilities of the respondents in Bayelsa state for many years. That these spillages, which have consistently affected the aquatic and agricultural life of the communities in the state, assumed epidemic proportions between 1993 and 1994 leading to the outbreak of contagious disease, killing over 1,400 people and several others critically hospitalized, with probable effects of contacting cancer. Persistent refusal of the respondents to pay compensation for oil spillages and other environmental incidents on the unsubstantiated claim of sabotage. Where compensation is paid, it is hardly adequate, considering the prolonged effect of the hazards on the people and their environment. That the relationship between oil companies including the respondents and their host communities is less than cordial and claims of provision of social amenities are bogus and grossly inadequate; where amenities are 154

provided they lack the requisite manpower and equipment for sustained maintenance.

Furthermore, the panel specifically highlights the incongruence between the stated policy of oil corporations and the actual reality on ground, it notes that:

The first pipe borne water provided by the respondents in Bayelsa was undertaken in 1999, in spite of the fact that they (respondents) admitted undertaking production in the area in 1956. Un- controverted expert opinions suggest that people in Bayelsa and Rivers states suffer cancer and other forms of neo plastic disease as a result of prolonged undiminished exposure to crude effluents arising from contacts with petroleum or oil spillages. In spite of the respondent’s admission of several oil spillages in its facilities in Bayelsa state they are unable to give an accurate data of the volume of spill and the number of spillages since they commenced operations in the area. Where spillages occur, the respondent’s response is rather slow as confirmed by on the sport assessment of the house members ( Vanguard , March 12, 2003:10, 11)

Similarly, in a judgement delivered in the federal High court in Asaba, Delta state, Justice

Ibrahim Buba ordered Shell Petroleum Dev. Co. Ltd, to pay the people of Ejema- Ebubu

Community in Tai Eleme local government area of Rivers state the sum of ₦15.4 billion, as special and punitive damages for oil spill in the community in 1970. In his judgement, the judge ordered the multinational oil giant to depollute and rehabilitate the dry land and swamps to its pre impact status. In its statement of defense, SPDC raised the issue of statute of limitation, but the court objected on the ground that if the case was based on occurrence of nuisance in 1970, then it would have been statute barred, but instead it was predicated on

SPDCs continuing nuisance which is subsisting till date.

Justice Buba therefore, entered judgement for the plaintiffs against the defendants jointly and severally and make the following order, that the defendants shall pay the plaintiffs, special damages in the sum of N1, 772, 460,585. Still in respect of special damages, Justice

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Buba added that Shell must pay the community a 25 per cent per annum interest for delayed payment for five years from 1996 at a modest mean Central Bank of Nigeria deregulated rate bringing the amount to N5,407,777,246. The judge also awarded the plaintiffs claims of 25 per cent of the said sum till the date of judgement and thereafter 10 per cent of the judgement debt till payment, the burden of proof on the minimal having been discharged by the plaintiff.

On the plaintiffs claim for general damages, the Judge held: I also assess and award the plaintiffs claim against the defendants in punitive terms of general damages in the sum of N10 billion for general inconveniences, acid rain, pollution of underground water and hardship to the population, who have been deprived of the right to self sustenance, education and good life

(This Day, June 7, 2010 ). Given the fact that Shell Petroleum Development Corporation

(SPDC) did not respond to any of the settlement suggest that the judgement were merely symbolic; hence, UNDP (2006) declared that the lack of avenue for redress is one of the major causes of conflict.

In order to mediate oil conflicts the federal government opted for the adoption of age- old policy of pacification by establishing various development agencies. The declaration of the

Niger Delta as a “special Area” by the Willinks Commission under the legislative list engendered the creation of the Niger Delta Development Board (NNDB). The board was under obligation to produce a development blue print and to transform the region within ten years, but it only utilized the first five years for development survey and the stabilization of the traditional economy before its demise when the military regime overthrew the Republican government

(Enemugwem, 2009).

Etekpe, succinctly stated that the NNDB could not perform because of structural, administrative and funding deficiencies which crippled it at birth due to the majority ethnic

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interest which collaborated with Obasanjo’s regime in 1978 to create 11 additional River Basin authorities in different sections of the country despite the absence of rivers in those areas. He noted that the additional River Basins were better funded than the NNDB which was later renamed as the Niger Delta River Basin Authority (NDRBA). The failure of the policy and the eventual collapse of all the 11 additional River Basin Authorities triggered another round of agitation in the Niger Delta region (Etekpe, 2007: 33).

Thus, the Oil and Mineral Producing Area Development Commission (OMPADEC) was created in 1992; this was followed by the establishment of the Niger Delta Development

Commission (NDDC) in 2000 and the subsequent formation of the Niger Delta Amnesty

Programme in 2010. The region is replete with agencies design to promote development, yet despite the establishment of these agencies with huge capital outlay, the develop mental problems of the delta have not declined.

Apart from the continuing degradation and pollution of environmental resources, particularly land, water bodies, and wildlife, with significant effect on the health, the socioeconomic conditions of the people have not improved; added to these are the paucity of infrastructure in the region which stands to reason that something is fundamentally amiss. The

OMPADEC, for instance, had a well defined structure and operational mandate which required it to:

(a). To receive and administer the monthly sums from the allocation of the federation

account in accordance with confirmed oil-production ratio in each state-

i. for rehabilitating and developing oil-mineral-producing areas;

ii. for tackling ecological problems that have arisen from the exploration of oil minerals;

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(b). To determine and identify, through the commission and the oil-mineral-producing states, the actual oil-mineral-producing areas and to foster the development of projects agreed upon with local communities in the oil-mineral-producing areas (Oguine, 2000; Osuntawa and

Nwito, 2005 Cited in Omotola, 2007:79).

The OMPADEC failed to fulfill its statutory duties as it could only provide electricity and pipe borne water to some villages, while the largest part of its fund were embezzled

(Akinwale, 2009; Omotola, 2007). Olusakin (2006:13) averred that the factors which militated against the effectiveness of OMPADEC as a developmental agency were official corruption that resulted in the lopsided award of contracts; inadequate funding; lack of a master plan that would define its developmental objectives and strategies; unfavourabe political climate; mismanagement and undue interference from people.

The comatose of the OMPADEC to effectively bridge the oil companies and the communities and engender development in the Niger Delta region led to the setting up of the

Niger Delta Development Commission (NDDC) in 2000 by an Act of Parliament as against the

OMPADEC which was established by military dictatorship. Specifically, the NDDC Act

(1999) empowers it to perform the following functions:

i. Formulate policies and guidelines for the development of the Niger Delta area;

ii. Conceive, plan and implement in accordance with set rules and regulations,

projects and programs for sustainable development of the Niger Delta area, in

the fields of transportation, including roads, jetties and waterways, health,

educa tion, employment, industrializa tion, agriculture and fisheries, housing and

urban development, water supply, electricity and telecommunications;

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iii. Cause the Niger Delta area to be surveyed in order to ascertain measures which

are necessary to promote its physical and socio economic development; iv. Prepare master plans and schemes designed to promote the physical

development of the Niger Delta area; v. Implement all the measures approved for the development of the Niger Delta

area by the Federal Government and the member States of the Commission; vi. Identify factors inhibiting the Development of the Niger Delta area and assist

the member states in the formulation and implementation of policies to ensure

sound and efficient management of the resources of the Niger Delta area; vii. Assess and report on any project being funded or carried out in the Niger Delta

area by oil and gas producing companies and any other company including non-

governmental organizations, and ensure that funds released for such projects are

properly utilized; viii. Tackle ecological and environmental problems that arise from the exploration

of oil mineral in the Niger Delta area and advise the Federal Government and

the member States on the prevention and control of oil spillages, gas flaring and

environmental pollution; ix. Liaise with the various oil mineral and gas prospecting and producing

companies on all matters of pollution, prevention and control; execute such

other works and perform such other functions which, in the opinion of the

Commission, are required for the sustainable development of the Niger Delta

area and its people.

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Furthermore, the NDDC Act provided for a strong capital base and an enabling regulatory regime to ensure the NDDC avoid the pitfall of its predecessor. Section 14 of the Act required that all stakeholders in the Delta region and oil companies finance the NDDC. The

Act mandated the federal government to contribute the equivalent of 15 percent of the total monthly statutory allocations due to member states of the commission from the federation account. Oil-producing companies, including gas-processing companies operating onshore and offshore in the Delta were also mandated to pay 3 percent of their total annual budget to the commission (NDDC Act 1999).

The Act addressed the issue of effective regulation and monitoring by providing for ways to monitor and ensure accountability in the commission. These included legislative and executive oversights over the commission's finances. Section 18 of the act stated that the commission should always have the president present its annual budgets to the National

Assembly for approval and he should keep a proper book of account, which must be audited at specified intervals. It empowered the president to appoint a monitoring committee, whose main task would be to monitor the management of the commission's funds and the implementation of its projects, for which purpose it was to have unhindered access to the commission's book of account and other records; and it ordered the committee to submit periodic reports to the president (NDDC Act 1999).

These provisions positioned the NDDC to effectively deal with the problems in the

Delta region. This was demonstrated by its execution of 810 projects in its early inception, between 2000 and 2003 (Akinwale, 2009). With the design of the NDDC’s Master Plan in

2007, which covered practically all aspects of human, environmental and physical development; it was broadly accepted by all stakeholders including President Umar Yar’Adua

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as the policy framework for the Niger Delta development. Sadly, evidence on ground seems to indicate that like its predecessors, the NDDC has not significantly enhanced the welfare of the

Niger Deltas’ and the Master Plan also appears to have been jettisoned (Dafinone, 2007). In a study conducted by Homestead Study Group, an advocacy, sensitization, and publicity nongovernmental organization devoted to monitoring projects and budgets of Niger Delta states and related institutions (like the NDDC), has returned a negative verdict on the NDDC, based on its field surveys, which exposed what it calls "the fact behind the figures"; for it, the NDDC has not made serious positive impacts on the delta (Homestead Study Group 2006 Cited in

Omotola, 2007). This also corroborates the observation of Comrade Peter Esele, President of the Petroleum and Natural Gas Senior Staff Association of Nigeria, that:

The NDDCs performance in the Niger Delta is not encouraging. The two in-house Unions have canvassed to leaders of the NDDC to be apolitical but the government does not see reason with us. There is a master plan for the Niger Delta development to be used by the NDDC. The master plan has been thrown into the dustbin. [Saturday Independent 2006, in Omotola, 2007: 83).

Akinwale (2009) thus argued that just like other previous agencies the NDDC is also bedeviled by financial constraint. This is attested by the erstwhile NDDC chairman, Chief Onyema

Ugochukwu, that “comprehensively developing the Niger Delta would require more than ₦400, billion, but as at October 2004, the NDDC had spent ₦80, billion (NDDC, 2004a). Following oil companies refusal to contribute the Statutory 3 percent of their annual budget to the NDDC, states have also questioned the rationale on the deductions from their allocation from the federation account to fund the agency (Ojameruaye, 2004, Cited in Omotola, 2007).

Corruption also remains an endemic problem, as suggested by the fact that the leadership of the NDDC has been changed thrice in less than six years, and "a recent allegation of 161

corruption that led to the indefinite suspension of Mr. Godwin Omene, the Managing Director of

NDDC is very much a reenactment of history" (Jike 2005:159 in Akinwale, 2009), and even the current dissolution of the NDDC board by President Goodluck Jonathan indicates the level of unaccountability and corruption in the affairs of the commission. Omotola (2007) posits that the avalanche of sources of revenue, as much as that of regulatory instruments, may not be as effective as expected. Their inefficiencies can largely be understood within the context of the crisis of the Nigerian state, particularly its form and character and contradictions inherent in the philosophical and structural foundations of the NDDC. The intensity of armed conflicts and the high level of insecurity in the Niger Delta accompanied by widespread poverty; high rate of unemployment; low level of education; dearth of infrastructure and massive environmental degradation (Owolabi & Okwechime, 2007; UNDP, 2006); clearly indicates that the NDDC is a failed project.

In the face of these predicaments, the Niger Delta became a place of frustrated expectations. This inevitably fostered a siege mentality especially among youths who feel condemned to a future without hope. As a reaction to widespread neglect, marginalization, environmental degradation and state repression the youths adopted confrontational strategies to address the problem. This action resulted in the emergence of several militant groups who resorted to the use of sophisticated arms such as machine guns, rifles, dynamites, rocket propelled grenade launchers and gun boats to draw the attention of the multinational oil companies and the Nigerian state to their collective travails. The militants’ confrontational strategies find expression in high profile kidnapping of expatriates or members of their families, bombing and destruction of oil facilities as well as daring guerilla-styled attack on highly fortified military formations (Omadjohwoefe, 2011: 249).

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The reaction led to the bleeding of the national economy, including loss of lives and properties. Disturbed by the security and economic challenges of the militants’ violent agitations in the Niger Delta, the Nigerian state under the leadership of late President Umaru Musa

Yar’Adua appointed a 45-man technical committee, whose mandate was to examine all the extant reports on the Niger Delta from the 1957 Sir Henry Willinks Commission through the

2002 General Ogomudia Panel to the 2007 Niger Delta Peace and Conflict Resolution

Committee and to proffer a viable solution to the Niger Delta debacle.

The resulting report recommended amnesty for militant leaders within a comprehensive demobilization, disarmament and rehabilitation (DDR) program; an increased allocation of oil revenue to the Delta; urgent improvement of infrastructure and human welfare services; and new institutions for the region’s longer-term development. The Technical Committee also urged the government to issue a White Paper by 1 January 2009 outlining strategies for rapid implementation of its recommendations (Adeyemi & Adeyemo, 2010: 44).

However, the late President Umaru Musa Yar’Adua single out the Amnesty option on

June 25, 2009 amongst a bunch of recommendation as part implementation of the 2008 Mittee

Committee report. The amnesty package was designed with three fundamental programmes namely disarmament, demobilization and reintegration. Disarmament refers to the collection, documentation, control and disposal of small arms, ammunition, explosives and light and heavy weapons of destruction. Demobilization has to do with the formal and controlled discharge of active combatants from armed forces or other armed groups. It extends from the processing of individual combatants in temporary centers to the massing of troops in camps designated for that purpose. The Reintegration programme incorporates the process by which

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the ex militants acquire civilian status and gain legitimate and sustainable employment. Each of the programmes has specific time frame (Presidential Committee on Amnesty, 2010).

Between 6th August 2009 when the disarmament (the first phase of the amnesty programme) commenced and October 4, 2009 when it ended, 20,192 militants comprising

20,049 males and 133 females respectively across the nine states of the Niger Delta denounced militancy and registered for the amnesty programme (Presidential Committee on Amnesty,

2010). Those that accepted the amnesty offer surrendered their weapons of war to security forces at different designated collection centers. The unconditional Amnesty offer gave the militants the opportunity to renounce violent agitations. With the conditional Amnesty granted by the late Yar’Adua’s administration, the economic forecast that looked depressed prior to the

Amnesty offer, began to witness a near instant turn around. The export figures improved from

800,000 barrels per day that it was during the hostilities between 2006 to 2008 to 2.3 million barrels per day in 2010. This increment of 1.5 million barrels per day means that the revenue to national coffers increased by a whopping 120.45 million dollars every day. This enormous wealth was gained as a result of the Amnesty programme that brought relative peace into the region. (Omadjohwoefe, 2011 )

However, Akpan & Ering (2010) finds that the Amnesty programme of debriefing and reintegrating of the militants into the society is not intended to address the political, economic and social-environmental problems that are the main drivers of conflict in the Niger Delta in the first place, rather the policy is designed to allow the Federal Government unhindered access to more oil and gas resources in the region and that is why the conflict will remain largely unresolved.

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Omadjohwoefe (2011:255) thus posit that in spite of the remarkable gains of the amnesty,

there are some challenges that the programme has not been able to address. i. The amnesty programme does not incorporate in its packages credible and comprehensive stakeholders’ consultation. The opinion of the inhabitants that suffered the brunt of the environmental degradation was ignored. Whatever consultation and endorsement they got were from governors and few traditional rulers who only did not feel the negative impact of oil exploration but also connived with the managers of the Nigerian state to undermine the devastating impact suffered by the people. ii. The amnesty initiative is nothing but a militant centered programme aimed at persuasively retrieving firearms from the militants and relocating them to rehabilitation camps where they are placed on monthly allowances. Whatever amount that is paid to the militants will not adequately make up for the life of luxury derivable from illegal oil bunkering activities and ransoms from those taken hostage.

iii. The actualization of peace in line with the amnesty package is on the negative side. The Nigerian state conceived peace as merely the absence of turmoil, tension, conflict and war. Peace on the positive side is conceived as a condition of good management, orderly resolution of conflict, harmony associated with mature relationships, gentleness and love. The peace ushered in by the amnesty is devoid of its positive components. For instance, there are cases of protests by repentant militants over the delay and nonpayment of allowances. The mere fact that the militants carry the label and are addressed as ex-militant negates the principle of amnesty and depicts stigmatization. This has a traumatizing impact on the youths. It accounts for the growing skeptism and fear that the programme is ill motivated. iv. The 45 man technical committee on the amnesty was not only on comprehensive disarmament, demobilization and rehabilitation. It also had as its term of reference, the harmonization of various reports on the Niger Delta. The resulting report recommended an increased allocation of oil revenue to the producing communities, urgent improvement of infrastructure and human welfare and new institutions for the region’s long-term development. The amnesty as it stands, is only concerned about the symptoms persuading the youths to surrender their arms while the cause which incorporates unemployment, poverty, infrastructural decay and general underdevelopment that affect the generality of people in the Niger Delta are unattended to. This has grave implications for the renewed violent agitations in the Niger Delta.

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v. The amnesty initiative did not incorporate in its package revenue allocation that is based on derivation as was the case in pre oil economic epoch. If the area that the revenue is derived is not given special consideration by way of fair share, it has great potentials for agitations.

It therefore stands to reason that the Amnesty Initiative of the federal government does

not have the capacity to redress the developmental challenges of the Niger Delta region.

Conclusion

This chapter contends that the United States government and the Nigerian government

trade relations and the need to protect U.S. investments in Nigeria drive the U.S policy of

increase military aid to Nigeria which weakens the state by promoting societal disengagement.

Statistical findings predicts that by 2025, U.S. oil consumption is projected to rise by at least 50

percent above today’s level of 20 million bb/d; and that imports are likely to rise from 12

million bb/d to as much as 20 million bb/d. The findings suggest that the U.S will likely depend

on Nigeria to provide as much as 25 percent of U.S. import. In 2006 alone, the U.S. imported

1.045 million b/d of oil from Nigeria, which is about 10 percent of U.S. crude import.

Thus, in order for the United States to safeguard the uninterrupted access to Nigeria’s

oil, the United States Government engages in a military security pact with the Nigerian

government and has also stationed U.S. military personnel in the Gulf of Guinea and trains

Nigerian Security forces to serve as surrogate to defend U.S oil interest and to prosecute U.S

war on global terrorism. Accordingly, the findings of the study validates the hypothesis that the

U.S. Government’s dependence on Nigeria’s oil and its military treaty with the Nigerian

government for oil security puts on hold Nigeria’s government capacity to mediate oil conflict

and to enforce the liability of oil corporations for violations of international law in Nigeria’s

Niger Delta.

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CHAPTER FOUR

ALIEN TORTS CLAIMS ACT AND OGONI STRUGGLE IN THE NIGER DELTA

4.1 Cultural Composition of Ogoniland

Ogoniland is situated in a coastal region in the heart of Rivers state in the Niger Delta. It has a common boundary with Bonny and Andoni on the South, on the West with Port Harcourt

(the Ikwerres) and on the East with Imo River. The area covers a territorial space of approximately 1,000 km2 in the South East of the Niger Delta basin. The 2006 national population census puts the population to 832,000. The region is divided administratively into 4 local government areas: Eleme, Gokana, Ken-Khana and Tai. Traditionally, the area is formed by 6 kingdoms; Babbe, Eleme, Gokana, Ken-Khana, Nyo-Khana and Tai (UNEP, 2011)

The immediate environment of the Ogonis account for their culture and occupation, the land is naturally endowed with rainforest that houses a remarkable biodiversity, timber and non timber products and economic trees of various species, aquatic resources with different varieties of fish, cray fish, crabs, water snails, sea turtles, periwinkles, oysters, etc; animals includes monkeys, grass cutters, bush pigs, snakes, land tortoise, squirrel, porcupine and others; because of these resources’ the people obtain their livelihood by engaging primarily in the economic activity of farming and fishing. Fishing activities are carried out in the rivers, rivulets and creeks as well as offshore, both men and women are actively engaged in fishing, farming and trading.

Farming is carried out at subsistence level by individuals and cooperative society with crops such as cassava, plantains, cocoyam, yam, vegetables, pepper, melon, okra, maize, etc.

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The traditional political institutional hierarchy is decentralized with each village/community being controlled and governed by a council of chiefs and elders under the leadership of a head chief: Paramount Ruler (Menebue), which is followed by the council of youths (Pya Zugura) and the compound chiefs (Menez g).In this hierarchical arrangement, the council of chiefs and elders headed by the paramount ruler is bestowed with the duty of policy formulation while the implementation of policies and defense is vested on the youth council. Furthermore, at the compound level or primary level, the compound chief is responsible for the daily administration of the activities of the family heads. These arrangements help ensure peace and unity at both the micro and macro level of the Ogoni society. The people worship both traditional deities and Christianity amongst others.

4.2 Impact of Oil Exploration in Ogoniland

Following the discovery of oil in commercial quantities in Oloibiri, now Bayelsa state in 1958, similar discovery was also made in Ogoniland and extensive production infrastructure were set up (See table below)

Table 4.2.1 Oil Field Facilities in Ogoniland at the Cessation of Oil Production, in 1993

SPDC Facility Number

Oil Fields 12

Wells drilled 116

Wells completed 89

Flow stations 5

Flow stations capacity/barrels (per day) 185

Source: UNEP (2011:24) Environmental Assessment of Ogoniland , Kenya: UNEP .

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This table shows the enormous amount of oil infrastructure and the scale of investment by the oil giant SPDC alone in Ogoniland before the advent of hostilities which shows that 185,000 bpd of oil was drilled in Ogoniland for over 3 decades.

Oil exploration impacted upon the social and environmental web of Ogoniland. The communities were confronted with the effect of land acquisition by the oil corporations which adds a lot of land pressure for densely populated region, land survey and clearance for seismic lines coupled with the creating of seismic and drilling camps; site preparation, infrastructure construction and drilling for oil which also involve the development of transport infrastructure and then the next stage after production are the effect of spills, disposal of effluent waste and gas flaring (UNEP, 2011:24) .

While the oil economy brought tremendous industrial and social changes, such as the sitting of two oil refineries, one petro chemical plant, a fertilizer plant, a cement factory and a power plant, the community were still disillusioned because a significant number were not employed by these establishments, instead there were increased influx of oil workers migrating into the region and exacerbating the cost of living. With limited amount of land for subsistence due to land appropriation for oil company’s use without a corresponding compensation in terms of job opportunities and direct act of environmental insensitivity ranging from operational oil spills, gas flaring to displacement of traditional economy, the stage was rife for conflict (Boele,

R; Fabig, H; and Wheeler, D. 2001).

In the early 1990s the Ogonis became the first to pioneer an organize protest under the platform of Movement for the Survival of the Ogoni People (MOSOP). During this period the ills of oil corporations operating in the state and region were heavily publicized locally and internationally especially by MOSOP led by an author, play write and a human rights activist,

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Ken Saro Wiwa. The Ogonis articulated their demands known as the Ogoni Bill of Rights. (See

Apendix 3)

This movement gave rise to group struggles which sought self determination and these were well articulated in the Chikoko Movement and Kaiama Declaration in 1993 and 1998

(Bayelsa State); Oron Bill of Rights in 1999 (Akwa Ibom) and Warri Accord in 1999 (Delta

State) (Etekpe, 2007: 111).

In 1993, the Ogoni ethnic group boycotted a presidential election on the basis that

“Ogoni should not give legitimacy to a president who would swear to uphold a constitution that dispossessed the Ogoni people of their natural rights (Ebeku, 2007:15). The Ogoni presented a

Bill of Rights to the Nigerian Government and also to the United Nations Sub-committee of

Human Rights Commission, to environmental protection groups and to other NGOs in Europe and North America.

In response to the complaint articulated in the Ogoni Bill of Rights, the Rain Forest

Action group and the Green Peace Organizations wrote to Shell International in respect of the

Ogoni claim about such specific aspects of environmental degradation as well as oil spillages and leakages. The Ogoni case was also presented in 1992 to the tenth session of the working group on indigenous population in Geneva and 1993 to the General Assembly of the

Unrepresented Nations and Peoples Organizations at The Hague.

In a letter to Shell, Chevron and the Nigerian National Petroleum Corporation in December

1992, MOSOP made the following demands, giving the oil companies an ultimatum to meet the demands within 30 days failing which they (the Ogoni) would embark on mass action to disrupt their operations in Ogoniland:

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(a) Payment of US$6billion for accumulated rents and royalties for oil exploration since 1958; (b) Payment of US$4billion for damages and compensation for environmental pollution, devastation and ecological degradation; (c) Immediate stoppage of environmental degradation and in particular gas flaring in Yorla, Korokoro and Bormu; (d) Immediate covering of all exposed high pressure oil pipelines and (e) Initiation of negotiation with Ogoni people with a view to reaching meaningful and acceptable terms for further and continual exploration and exploitation of oil from Ogoniland and to agree on workable and effective plans for environmental protection of Ogoni people (Oputa Panel Report, 2005: 29).

In 1993, Shell was forced to close its production in Ogoniland following mass protest at its facilities and citing intimidation of its staff. The corporation resorted to militarized commerce as a policy strategy. The federal government consequently issued a Decree, pronouncing disturbances at oil installations to be acts of treason punishable by death (Oputa Panel Report,

2005: 30). Since the Decree was promulgated the systematic repression of the Ogoni people was orchestrated by the Nigerian State leading to the killing of over 5000 Ogonis, 10,000 others were forced into exile in other parts of Nigeria and abroad including 1000 who were in refugee camp in Benin Republic (Ibeanu, 1999: 170).

In addition to direct military attack on the Ogonis, the State also resorted to instigating inter communal conflicts between the Ogonis and its immediate neighbours; such as the conflict between the Andonis and Ogonis during July and September, 1993 and with the

Okrikas in December, 1993. The Oputa report indicates that ten Ogoni villages were destroyed and about one thousand Ogonis were killed, while thirty thousand were rendered homeless during the conflict (Oputa, Panel Report, 2005: 30; Ibeanu, 2003). In 1994, Ken Saro wiwa and

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eight other activists of the MOSOP were arrested on a trump up charge of the murder of four traditional leaders in Ogoni on November 10 th , 1995, Saro wiwa and his eight colleagues were executed by the military government of late General Sanni Abacha, amidst international and national protest and condemnation of the government action which subsequently led to the suspension of Nigeria from the Commonwealth as the immediate consequence of imposition of sanction (HRW, 1999).

Shell Petroleum Development Company (SPDC) was alleged to be complicit in the execution of Ken Saro wiwa and his kin’s men. A leaked document was reported on the front page of the UK newspaper, The Guardian (Vidal, 1995). The story quoted the secret government memorandum,

Shell operations still impossible unless ruthless military operations are undertaken for smooth economic activities to commence. Wasting targets cutting across communities and leadership cadres especially vocal individuals ( Boele , et al 2001:80).

The memorandum also noted the need for ‘pressure on oil companies for prompt regular inputs as discussed’ implying that Shell may be paying the military authorities for the operations of

Major Okuntimo’s unit (the Internal Security Task Force) in Ogoni – a unit well known for its brutality in Ogoni. Shell responded ‘We categorically deny that we paid money to the likes of

Major Okuntimo’ (Boele et al 2001:80).

However, in his concluding remark Ken Saro-Wiwa made it clear whom he held responsible for the trial: “Shell is here on trial. The Company has ducked this particular trial, but its day will surely come and the lessons learn there may prove useful to it for there is no doubt in my mind that the ecological war the Company has waged in the Delta will be called to question sooner rather than later. . .” (Saro-Wiwa, 1995b, in Boele et al 2001:81 ).

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This brings to the fore the issue of the operational level of the monitoring of international human rights. In 1946, the UN Economic and Social Council (ECOSOC) established a sub commission on prevention of discrimination and protection of minorities.

Since the early 1970s, the Commission on Human Rights has developed an impressive number of mechanics for monitoring gross violation of human rights. By 1993, the Commission had appointed thirteen countries rapporteurs/representatives and developed ten thematic mechanisms to address summary and arbitrary executions, enforced involuntary disappearances, arbitrary detentions, torture and other cruel or degrading treatment or punishment, religious intolerance, mercenaries, sale of children, freedom of expression and internally displaced persons.

The Commission on Human Rights has developed into a high profile decision making body of fifty three members that may hold (apart from its regular annual session) extraordinary session in cases of emergency; it dispatches more than thirty fact finding missions annually and deals with thousands of individual cases through its different monitoring procedures. Moreover, it has established a programme of technical assistance for human rights democratic institution building and for the promotion of human rights awareness. More than 150 NGOs in consultative status with ECOSOC attend the commission’s session and many others without such status follow the sessions and press for their respective causes. From the role of a low key promoter of human rights in its early years, the commission has now become a protector of human rights.

In the regional level, the African Charter on Human and People’s Right was adopted by the Organization of African Unity (AU) on June 27, 1981 and entered into force on October

21 st , 1986. Raymond Sock (1994) aptly pointed out that the evolution of this Charter was a

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result of the widespread massacres and massive human rights violations in the continent and the mounting pressure from within and outside Africa. Consequently, on November 2 nd 1987, the

African Commission on Human and People’s Right was inaugurated and held its first session in

Addis Ababa. The Commission’s role in protecting human rights involve, the review of states parties report where state parties to the African Charter are obligated (under article 62) to submit every two years a report on the legislative or other measures taken with a view to giving effect to the rights and freedoms recognized and guaranteed by the Charter.

Monitoring the behavior of states by reviewing their periodic reports can be an effective means for subjecting states to public scrutiny and encouraging them to bring their laws and practices into line with international standards. Government representatives are required to come before the Commission to discuss their reports and to respond to questions posed by the commission members (Wiseberg, 1994). To achieve this, requires a thoroughness that can come from having available substantial information on law and practice and the political will to tell countries that maintain inappropriate and abusive practice that they will need to modify their behaviour (Gaer, 1992).

Secondly, the protection mechanism available to the Commission is the communication procedure as outlined in chapter 111 of the Charter, which provides for state complaints where one state party believes that another has violated the Charter (article 47). It is however, observed that this type of horizontal enforcement has never been utilized, since states are normally hesitant in pointing an accusing finger at another; what has been utilized is article 55, which authorizes the Commission to receive communications from non state parties which the

Commission has interpreted to include individuals and NGOs (Wiseberg, 1994:37).

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A third measure is the appointment of special rapporteurs to study the question of extra judicial executions and monitor the violations of the right to life and make further reports to subsequent sessions and intercessional working groups as recommended by Amnesty

International (Amnesty International Statement to the 11 th Ordinary Session of the

Commission, Addis Ababa, 1-10 December, 1993). This practice is in conformity with the

Commission’s goal since its 11 th Session in Tunis, (2-9 March, 1992) when it began placing selected human rights issues on the agenda for in depth examination and in some cases appointed a member as a special rapporteur to report to the following session. Wiseberg

(1994:38) point out that:

The African Commission has a wide range of powers under the African Charter, which it could develop to address extra judicial executions in cases when a speedy reaction is essential. In addition to its broad powers under article 45 and 46, it may resort to any appropriate method of investigation in carrying out any of its activities. It has recognized in rule 97 of its rules of procedure governing state communications that good offices are part of its inherent powers. The African Commission could ask its chairman in consultation with the inter sessional working group or other members of the African Commission to use this authority publicly or privately in cases where individuals are at serious risk.

Given the foregoing, it is clear that state actors are largely responsible for breaches of human rights against those in their jurisdiction and that is why much of international humanitarian laws operate outside the realm of national legal system in order to provide adequate remedy for those whose rights have been violated and to provide an international yard stick by which the state compliance with human standards can be objectively determined.

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4.3 Alien Torts Claims Act and Compensation in Ogoniland In recent times the Nigerian judiciary has recorded a substantial number of compensations arising from oil litigation. Adewale (1989) avers that the essence of compensation is to make amends for the loss suffered by victims, which implies restoring the victim to the state he was before the loss, otherwise the compensation cannot be said to be fair and adequate. Frynas (1999) analysis of oil related cases from 1990s indicates that there is a legal change whereby the courts are now more disposed to granting more compensation claims as against previous legal regime which is occasioned by the changing approach to law; increased professional ability of legal counsel for oil litigants and the impact of changing social attitudes on judges (See Table 4.3.1).

Table 4.3.1 Compensation Awards in Selected Oil- Related Cases

Year of Court Case Plaintiffs Defendant’s Compensation Compensation Compensation Claim Offer Award (000s Award (US$) Award as Judgement (000s (000s Naira) Naira) Share of Naira) Claim 1972 Mon v. Shell- 200 0 0.2 304 0.1% BP 1975 Umudje v. 50 0 12 19,481 24 Shell BP 1978 Fufeyin v. 56 56 56 88,189 100% Shell-BP 1978 Shell-BP v. n.a 0 35 55,118 n.a Cole 1994 Shell v.Farah 26,490 0 4621 210,084 17% 1996 Shell v. 64,146 50 6000 274,173 9% Tiebo VII 1996 Shell v. Udi 50 0 39 1,782 78% 1997 Geosource v. 2000 0 197 9,001 10% Biragbara 1997 Shell v. 22,000 0 22,000 1,005,208 100% Isaiah Source: Frynas, J.G. (1999:142) “Legal Change in Africa: Evidence from Oil Related Litigation in Nigeria,” Journal of African Law, Vol. 43, No. 2 The table shows that prior to the Farah case compensation awards were lower. In Mon v. Shell BP, the plaintiffs did not prepare a valuation of their claims, so the judge assessed the

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compensation figure himself at ₦200 (US$304 at the official exchange rate). The compensation payment was only 0.1 per cent of the plaintiffs' original demand. One of the notable exceptions was Fufeyin v. Shell-BP in 1978, in which the plaintiffs were awarded as much as 55,691 Naira

(approx. US$88,189) for the destruction of houses, crops, fishing creeks, canals, fish ponds, traps and other property. The reason for this substantial payment was that Shell-BP had earlier agreed to the amount of compensation. While it is difficult to compare different court cases because the facts in each case are unique and they involve different types of damage, there is evidence that, in the wake of the ruling in the Farah case, higher compensation payments were paid to those adversely affected by oil operations. In Shell v. Tiebo VII, 6 million Naira

(US$274,173) was awarded, while in Shell v. Isaiah, 22 million Naira (US$1,005,208) was awarded (Frynas 1999: 141)

While this legal revolution has resulted in tangible benefit to some oil litigants in a number of high profile cases; it has not significantly profited the local people in Nigeria's oil- producing areas. This is because even if a plaintiff is able to win a lawsuit, litigation can only address the damage suffered by a specific litigant and not the impacted community as a whole.

Also, courts are generally reluctant to make use of injunctions against oil companies, which suggest that, the judiciary is not disposed to compelling companies to reduce the adverse impact of oil operations. These basic limitations coupled with the ambiguous nature and the uncertainties of legal outcomes partly help to explain why a significant number of frustrated litigants and potential litigants in oil-related disputes may resort to violence. In that sense, legal change could be said to have not gone far enough to discourage extra-legal forms of protest such as the kidnapping of oil company staff, which has recently become widespread in Nigeria

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(Frynas, 1999: 150). Moreover, it is also apt to point out that these cases revolve mainly around oil spills. This fact is reflected in Frynas (1999:1) account that:

In the period 1981-86, 24 compensation claims against Shell went to court in Nigeria. In early 1998, Shell was reportedly involved in over 500 pending court cases in Nigeria, out of which 70 per cent, or roughly 350 cases, dealt with oil spills, the other 30 per cent, or 150 cases, dealt mostly with other types of damage from oil operations, contracts, employment and taxation. In the whole of the 1980s, Chevron reportedly had only up to 50 court cases in Nigeria. In early 1998, Chevron was involved in over 200 cases, of which 80-90 per cent, or roughly 160-180 cases, dealt with oil spills, other types of damage from oil operations or land acquisition for oil operations. This indicates that Nigerian Courts have not yet entertained cases that address Oil

Corporation’s complicity in respect to international crimes such as torture; cruel, inhuman or degrading treatment; crime against humanity; genocide and extra judicial executions; etc, which throws up a jurisprudence gap that has not been filled by extant literature. The large scale nature of such crimes requires effective prosecution strategies which will focus on the planners and organizers of those crimes. Consequently, the International Court of Justice (ICJ), and International Criminal Court (ICC) provides justice mechanism which investigates and prosecute international crimes which may extend beyond the capacity of the domestic justice system.

The prosecution of international crimes is a fundamental component of transitional justice which has its root in international obligation that can be traced to Nuremberg Trial, and the International Criminal Tribunals for Former Yugoslavia (ICTY) and Rwanda (ICTR). The

International Court of Justice (ICJ) was established in The Hague by the charter of the United

Nations in June 1945 and became operative in April 1946, which qualifies it as a World Court and the U.N. main judicial agency. The Court consists of 15 members, and no two judges may 178

be nationals of the same state (Article. 3). It is bestowed with dual jurisdiction; it decides in accordance with international law, disputes of a legal nature that are submitted to it by states

(Jurisdiction in contentious cases) and it gives advisory opinions (Advisory Jurisdiction) on legal questions at the request of the organ of the U.N or specialized agencies authorized to make such a request (Article. 36). A significant limitation of the Court is a clause in the enabling Statute which stipulates that: “only states may be parties in cases before the Court”

(Article 34).

This suggest that individuals, corporations, parts of federal state, NGOs, U.N organs and self determination groups have no locus standing before the Court and are excluded from direct participation in cases. This stands to reason that there is an absence of effective global institution that can hold corporations accountable for the consequences of their actions, thus creating an accountability gap in global business and social environment. The implication is grim for weak states whose Gross Domestic Product (GDP) is less, compared to the net income of giant transnational corporations.

In July 2002, the Rome Statute established the International Criminal Court (I.C.C.).

The Rome Statute is a treaty obligation binding on state parties which grew from an initial 60 parties to 119 state members as at October 13, 2011. Article 5, defines the crimes within the jurisdiction of the court to include the crime of genocide; crime against humanity; war crimes and crimes of aggression. Article 11 (1) provides that the court can only exercise jurisdiction only with respect to crimes committed after the entry into force of this statute. This means the court cannot try ex post facto cases, because it is limited to event that took place since 1 July

2002.

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The enabling statute of the International Criminal Court mandates that, the court may only exercise jurisdiction if the accused is a national of a state party or a state otherwise accepting the jurisdiction of the court; the crime took place on the territory of a state party or state otherwise accepting the jurisdiction of the court or the United Nations Security Council has referred the situation to the prosecutor irrespective of the nationality of the accused on the location of the crime. Article 25 (1) however, imposes a significant limitation on the court, it stipulates that: “the court shall exercise jurisdiction over natural persons”. This precludes that transnational corporations involved in international crimes cannot be brought before the

International Criminal Court. This also has implication for global justice considering the enormous wealth and power of TNCs.

However, an interesting development has been the recent effort to use the United States

Alien Torts Claims Act of 1789 to sue TNCs for human rights infringement in countries outside the United States. If these suits are allowed to proceed, then the ATCA could become a powerful legal mechanism to increase corporate accountability. This philosophy is anchored on the legal rule that the law of nations is incorporated into the law of the United States and that a violation of the international law of human rights with regard to torture, cruel, inhuman or degrading treatment; crime against humanity; war crimes, piracy, rape, genocide and extra judicial executions amounts to a violation of U.S domestic law. The Alien Torts Claims Act as codified in 28 U.S.C § 1350 provides that, “the District courts shall have jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.”

The coinage of the language suggests that not every tort gives rise to an ATCA claim. A tort is generally defined as a violation of a legal obligation that has caused harm to a third party

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or parties. Domestic tort could include trespass, assault, theft, etc, while international torts include human rights abuses, such as torture, slave trading, piracy and other egregious rights violations (Simmons, 2006: 48). For a tort to be actionable under the ATS, three necessary conditions must be met, (i) an alien, (ii) a tort and (iii) a breach of customary international law.

The first requirement is straight forward and easily determined. The second requirement often generates some level of judicial rigour in determining what the statute intended, while the third is the most heavily contested issue because it forces American courts to clearly identify customary international law or treatise, establish their content and enforce their provisions in the context where they have seldom been used (Koebele, 2009).

Customary international law arises from general and consistent practice of states which creates a sense of legal obligation. However, determining what constitutes a violation of customary state practice is an uphill task because under ATCA, subject matter jurisdiction cannot be exercised unless the plaintiff can demonstrate that a violation of the law of nations has occurred. Having fulfilled the fundamental requirement, the tort must also pass the test of justiciability; Legal theory indicates four approaches the court could utilize to determine this test. The limited approach would permit actionable torts only to violations of jus cogens norms.

The most extensive approach would permit the court to create new law, which implies moving beyond the scope of customary international law. A third approach reverberate the method adopted by the second circuit in Filartiga which oblige the court to read the ATCA in accordance with its plain language, to extend to all torts in violation of the law of nations determine in the usual way by state practice followed out of a sense of legal obligation, while the final approach would restrict the suit to those that are universal, definable and obligatory

(www. Allbusiness.com/legal/international-law/4065987-1.html).

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Koebele (2009) aptly stated that the general perception following the Filartiga decision is that a violation of international law is established if the conduct is universally recognized as wrong through international agreements, decisions, resolution and actual state practice. Absent such formal agreement, universal norms against certain conduct (for example stealing) do not rise to the level of a violation; such that claims that have been consistently upheld as sufficient include; piracy, slavery, torture, summary execution, genocide and disappearance and claims that have been rejected as insufficient include; censorship, libel, stealing, fraud, embezzlement, wrongful picketing and environmental harm.

In Hamid v. Price Waterhouse, 516 US 1047 (1996), petitioner depositors filed a class action suit against the bank owners, a foreign country and related firms on fraud, breach of fiduciary duty, misappropriation of funds and Civil RICO claims. The district court dismissed the ATCA claim because the torts alleged by appellants did not involve a violation of international law. Similarly, in Maugein v. NewMont Mining corp. 298 F. Supp. 2d 1124 (D.

Colo. 2004) the court overruled plaintiffs claims against numerous foreign citizens and corporations because the alleged fraud, bribery, extortion and corruption were not actionable under the law of nation. Also, in Papa v. United States, 281 F.3d 1004 (9 th Cir.2002). The Ninth

Circuit maintains that a claimant must show a specific, universal and obligatory norm of international law as part of an ATCA claim.

In Doe v. Unocal, the Ninth 9 th Circuit declares that a specific, universal and obligatory norm is actionable under ATS whether it approximates Jus cogens or not. The legal principle which underscores Jus cogens are general international laws which binds states even if they have not consented (Vienna Convention, 1969). ATS precedence thus shows that egregious crimes such as war crimes, crime against humanity, genocide, summary execution, and torture,

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forced labour, cruel, inhuman and degrading treatment attain the requirement as articulated in the U.S. Supreme Court decision on Sosa. This section examines substantive Alien Torts jurisprudence on egregious human rights violations.

4.4 Genocide

Genocide is classified as a crime under international law for which individuals are punishable. It is defined as a denial of the right of existence of entire human groups, as homicide is the denial of the right to live of individual human being (UN, 1946:188). The

Genocide Convention, 1948, Article 11, defined genocide as any of the following acts committed with intent to destroy in whole or in part, a national, ethnic, racial or religious groups as such: (a) Killing members of the group; (b) Causing serious bodily or mental harm to members of the group; (c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) Imposing measures intended to prevent births within the group and (e) Forcibly transferring children of the group to another group.

Article111 includes four more types of indictable act, conspiracy to commit genocide and complicity in genocide. One hundred and thirty eight states are adherents to the genocide convention while their endorsement of article 11 has never been amended. The term genocide was introduced into the lexicon of international crime by Lemkin who coined genos, which is a

Greek word for race or tribe and cide, which is derived from a latin word for killing Lemkin

(1944).

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Triffterer (2001) differentiate genocide from other crime by highlighting the element of intent design to destroyed a group to which the immediate victims belong, thus incorporating a dual element; one focusing on the immediate victims and a second targeted at the group. The general conception among states is that a person commits an offence of genocide if he commits an act falling within the definition of genocide in article 11 of the genocide convention

(Quigley, 2006).

This demonstrates an evidence of opinion juris among states as part of international customary law which is actionable under the ATS (Abebe-Jira v. negewo, 72 F.3d 844,847, 11 th

Cir.1996; Doe1 v. Unocal Corp.395F.3d 932,936, 9 th Cir. 2002; Bigio v. Coca-Cola Co, 239

F.3d 440,44, 2d Cir.2000; Presbyterian church of Sudan v. Talisman Energy Inc. 453

F.Supp.2d 663, S.D.N.Y, 2006). In tandem with the concept of genocide, an actionable tort must pled that the act is specifically directed a specific national group. As shown in Estate of

Valmore Lacarno Rodriguez v. Drummond co. Inc. where the court dismiss a genocide claim on the ground that the dead victims were leaders who represented workers at the Drummond facility and therefore do not constitute a national, ethnic, racial or religious group.

In Kadic v. Karadzic, 70.3d 232 (2d Cir. 1996) a group of Croat and Muslim citizens brought a suit under the ATCA in NewYork against Radovan Karadzic, leader of the “Srpska” area of Bosnia Hergozegovina. They alleged various atrocities ranging from genocide, war crime, rape and forced prostitution. The Second Circuit held that private parties could be liable for piracy, the slave trade and war crimes. It then categorizes the plaintiffs claim into three different class; a) genocide b) war crimes and c) other instances of inflicting death, torture and degrading treatment. The court declared that a private actor such as Karadvic could be held liable for the first two categories (Shaw, 2002).

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In Presbyterian Church of Sudan v. Talisman Energy Inc. the applicant brought a suit of alleged genocide against the Sudanese government with the assistance of Talisman Energy, a

Canadian transnational corporation. On motion to dismiss, Talisman contend that the claimant were unable to identify a potentially protected group under the prohibition on genocide as the term “non Muslim, African Sudanese minority” does not constitute a national, ethnic, racial or religious group as defined by the convention on genocide. Judge Schwartz however, dismisses the contention and held that the plaintiffs have adequately alleged genocide regarding the

Christian and animist groups under the genocide definition.

In acknowledging the diversity of the population in Sudan, he held that the non Muslim

African Sudanese group clearly constitutes an ethnic group. An allegation of intent must also be shown by any claimant alleging genocide. This is evidenced in Beanal v. Freeport-

Mcmoran, Inc. Despite the acceptance of Amungme tribe as a group under the prohibition on genocide, judge held that Beanal did not adequately plead the destruction of the group in the sense of genocide as defined in international law and that the act of specific intent to destroy the group by the transnational corporation under the genocide act was inadequate. Specific intent as a factor in establishing genocide is expounded in the ICTY trial chamber in Prosecutor v. Krstic. The chamber explicate that; the intent to destroy a group, even if only in part, means seeking to destroy a distinct part of the group as opposed to an accumulation of isolated individuals within it. Although the perpetrators of genocide need not seek to destroy the entire group protected by the convention, they must view the part of the group they wish to destroy as a distinct entity which must be eliminated as such.

A campaign resulting in the killings in different places spread over a broad geographic area, of a finite number of members of a protected group might not qualify as genocide, despite

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the high total number of casualties , because it would not an intent by the perpetrators to target the very existence of the group as such; conversely, the killing of all members of the part of a group located within a small geographical area, although resulting in a lesser number of victims would qualify as genocide, if carried out with the intent to destroy the part of the group located in this small geographical area. Indeed, the physical destruction may target only a part of the geographically limited part of the larger group because the perpetrators of the genocide regard the intended destruction sufficient to annihilate the group as a distinct entity in the geographical area at issue. In this regard it is important to bear in mind the total context in which the physical destruction is carried out (Koebele, 2009).

4.5 Crime against Humanity

Crimes against humanity share some similarity with genocide, but there is sharp distinction. Mass killing based on discriminating intent is sufficient in constituting crimes against humanity, while genocide is hinged on the specific intent to destroy a group or at least, part of the group. The absence of the existence of general governmental plan to or policy to destroy, the supposed specific intent may translate to merely a wish. The Nuremberg charter, article 6 (c) defines crime against humanity as; murder, extermination, enslavement, deportation, and other inhuman acts committed against any civilian population, before or during a war or persecution on political, racial or religious in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated.

Ratner and Abrams (2001) posits that “crimes against humanity consists of four elements; i) the act committed is inhuman in nature and character resulting in great suffering or serious injury to body or health, ii) the act is committed as part of a widespread or systematic

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attack, ii) the attack is committed against members of the civilian population, and iv) the existence of mens rea.” While, the origin of war against humanity could be traced to world war

1, its legality as a crime under international criminal law was established following atrocities performed by Germans, which also indicted some transnational corporations in U.S. military tribunals, notable among them are the I.G Farben case; the Flick case and the Krupp case.

A major feature of crime against humanity is the widespread and systematic attack targeted against any civilian population, as enunciated in article 7 (2a) of the ICC statute, that an “attack on a civilian population means a course of conduct involving the multiple commission of acts referred to in paragraph 1, against any civilian population, pursuant to or in furtherance of a state or organizational policy to commit such attack”. The definition thus anchors on the defenselessness of the civilian population in relation to the state military or a militia force.

In Wiwa v. Royal Dutch/Shell, the plaintiffs alleged crimes against humanity against the oil TNC by its complicity with the Nigerian state in the attack of local villages, 226 F.3d

88, 92, 94 (2d cir. 2000). In the case of Unocal, the claimants also alleged systematic military attack on local villages ranging from killing, rapes and forced labour in the pipeline construction zone, Doe v. Unocal, 395 F.3d 932, 946-47 (9 th Cir.2002). In a similar vein, the

Presbyterian church of Sudan v. Talisman Energy alleged crimes against humanity.

In the controversial case of Sarei v. Rio Tinto, this involved a prolonged civil war between the communities in the Bougaunville Island and the government of Papa New Guinea brought about by the community’s resistance to a large scale mining project on the Island by

Rio Tinto, a giant transnational mining corporation. The activities of the TNC resulted in the

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devastation of the environment and livelihood and also to discriminatory labour practices and harming of the people’s health which provoked a bloody civil war.

The plaintiffs alleged that in 1990, Rio Tinto persuaded the government to enforce a blockage on the Island in order to overcome community resistance and to enable the corporation to access the minefield. They further alleged that the blockade contributed to the stoppage of the flow of medicine, clothing and other essential supplies to the people of

Bougainville, they made reference to the Red Cross report that lack of medicines and vaccines resulted in the death of more than 2000 children in its first two years of operation and asserted that a constantly growing number of people died of curable disease. On the whole, the claimants contended that an estimate of 10,000 deaths resulted as a fall out of the blockade and that the enforcement of the blockade and its continuation constituted a crime against humanity.

The District court dismissed the case on political question doctrine, but on appeal the

Ninth circuit overturned the judgement of the district court and warned the district court against relying on statements of interests in this context and held that none of the claims were barred by the political question doctrine, 487 F.3d 1193, 1208, 1213 (9 th Cir. 2007). With regard to the first Baker factor, it refers to the case law in Kadic that the resolution of human rights is constitutionally committed to the judiciary (487 F.3d at 1204). The appeal court emphasized the separation of power doctrine and held that even if it would hinder the Bougainville peace process, it was unjustifiable to bring in the three baker factors. The court also differ on the view that the act of state doctrine would obstruct the claims partially because the claims were premised on jus cogens and partially on the ground that consideration of foreign policy matters is only one of several sabbatino factors, and in respect of comity, the court of Appeal also

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caution the district court of excessive submissiveness to the executive branch and remanded the case (Koebele, 2009)

4.6 War Crimes

War Crimes are the violations of international humanitarian laws on armed conflict which includes murder, the ill-treatment or deportation of civilian residents of an occupied territory to slave labour camps, the murder of or ill treatment of prisoners of war, the killing of hostages, the wanton destruction of cities, towns and villages and any devastation not justified by military or civilian necessity (Solish, 2010). After the Nuremberg and Tokyo trials of 1945-

1948, it has been generally accepted in international customary law that war crimes involve three types of activities; crime against peace, crimes against the laws and customs of war, and crimes against humanity (Koshy, 1997).

War Crimes can thus be described as any conduct;

(i) defined as a grave breach in any of the international convention signed at Geneva 12,

August 1949, or any protocol to such convention to which the United States is a party;

(ii) Prohibited by article 23, 25, 27 or 28 of the annex to The Hague Convention IV, respecting the laws and customs of war on land, signed 18 October 1907;

(iii) which constitutes a grave breach of Common Article 3 as defined in Subsection (d) when committed in the context of and in association with an armed conflict not of an international character;

(iv) of a person who, in relation to an armed conflict and contrary to the provisions of the

Protocol on Prohibitions on the use of Mines, Booby Traps and other devices as amended at

Geneva on 3 May 1996 (Protocol 11 as amended on 3 May, 1996), when the United States is a party to such protocol, willfully kills or causes serious injury to civilians.

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War Crimes is anchored on two major plank, the Hague Law and the Geneva Law which falls under international humanitarian law which are codified as acceptable standard for all states even in war time, a violation of which attracts criminal responsibility. The Hague

Conventions are international treaties agreed at the first and second peace conference at the

Hague, Netherland in 1899 and 1907 respectively which prohibited the use of certain weapons, subsequent Geneva Convention in 1906, 1929 and 1949 expanded the laws of war as they applied to civilians, prisoners of war and sick and wounded military personnel (en.

Wikipedia.org/wiki/war_crime).

The first Geneva Convention for the “Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field” was first adopted in 1864 and was revised in 1949. The second Geneva Convention for the “Amelioration of the Condition of the Wounded, Sick and

Shipwrecked Members of Armed Forces at Sea”, first adopted in 1906, the third Geneva

Convention “Relative to the Treatment of Prisoners of War” which was first adopted in 1929 and last revised in 1949, and the fourth Geneva Convention “Relative to the Protection of

Civilian Persons in times of War” adopted first in 1949, based on parts of the 1907 Hague

Convention (en.wikipedia.org/wiki/war_crime).

The Common Article 3 prescribes that:

In case of armed conflict not of an international character occurring in the territory of one of the high contracting parties, each party to the conflict shall be bound to apply, as a minimum, the following provisions:

1. Persons taking no active part in the hostilities, including members of armed forces

who have laid down their arms and those placed hors de combat by sickness, wounds,

detention or any other cause, shall in all circumstances be treated humanely, without

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any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth or

any other similar criteria. To this end, the following acts are and shall remain prohibited

at any time and in any place whatsoever with respect to the above mentioned persons:

(a) Violence to life and person, in particular, murder of all kinds, mutilation and cruel

treatment and torture; (b) Taking of hostages; (c) Outrages upon personal dignity, in

particular humiliating and degrading treatments and (d) The passing of sentences and

the carrying out of executions without previous judgement pronounced by a regularly

constituted court affording all the judicial guarantees which are recognized as

indispensable by civilized people.

2. The wounded and the sick shall be collected and cared for. An impartial humanitarian

body such as the International Committee of the Red Cross may offer its services to the

parties to the conflict. The parties to the conflict should further endeavour to bring into

force, by means of special agreements all or parts of the other provisions of the present

convention.

In the Kadic case, the petitioners also alleged under the Alien Torts Claims Act that acts of murder, rape, torture and arbitrary detention of civilians committed in the hostilities of war were perpetrated against them. In giving its judgement, the Second Circuit relied on precedence and customary international law. The court therefore held, that atrocities of the types alleged here have long been recognized in international law as violations of the laws of war and with reference to international customary law, the court explains that the laws of war were codified in the four Geneva Convention which have been ratified by more than 180 nations including the United States and that the Common Article 3 which prohibits infringement on life, limb and dignity of non combatants in armed conflicts in particular civilians is substantially identical in 191

each of the four conventions binds each party to the conflict to apply as a minimum, the following provision and therefore is actionable under the ATCA.

It is significant to note that for war crimes to be justiciable it must be predicated on the existence of armed conflict and a strong connection between the tort and the armed conflict

(Prosecutor v. Tadic; Prosecutor v. Furundzija, Case no. IT-95-17/1-T, Dec.10 1998;

Prosecutor v. Nateltilie and Martinovic, Case no. IT-98-34-T, 31 March, 2003). This does not preclude the mental element or the knowledge and intent of the crime which constitutes the

Mens rea. It is conventional to classify war crimes into war crimes against persons and war crimes against property. In war crimes against persons, the fundamental basis and aim of international humanitarian law in general is the protection and prevention of bloodshed among innocent civilians who are neutral in the armed conflict.

For instance, following a conflict situation between armed groups and military personnel On 13 May 2009, the Joint Task Force troops made up of the Army, Navy, Air force and Mobile police with the assistance of Chevron Nigeria ltd helipad launched an offensive on six communities across Warri South and Warri South West in Delta state of Nigeria from low flying helicopters which attacked towns and villages on the Island with mortar bombs, guns, grenades and aerial bombardment against civilian population and non military targets as well as the attacking of people in care centre’s. Amnesty International estimates that as many as

10,000 people could be displaced; this is apart from the number of dead civilians (IRIN Africa,

2010).

In war crime against property, the Nuremberg Charter prohibits the plunder of private property by occupying powers and article 46 of the 1907 Hague Convention Respecting the

Laws and Customs of War on Land, prohibits the confiscation of private property by occupying

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powers. In Bodner v. Banque Paribas, the Court exercised jurisdiction over the claims of expropriation of Jewish property by the Nazi and Vichy government filed against French Banks which conspired with the German occupying powers and the vichy government (114

F.Supp.2d. 117 E.D.N.Y. 2000).

This thus shows that transnational corporations that are complicit in egregious rights violations can be held legally accountable under ATS; this follows the fact that the prohibition of genocide, crimes against humanity, war crimes and violations of common article of the

Geneva Convention (the killings, wounding and mistreatment of civilians in armed conflicts) are universally acknowledged and has therefore attained the status of international customary law which meets the standard of the Sosa test as enunciated by the US Supreme Court.

4.7 Arbitrary Detention

Arbitrary detention is essentially unlawful detention lacking the normal processes required by international law (Simons, 2006: 20). Article 9 of the ICCPR states that; “no one shall be subjected to arbitrary arrest or detention nor be deprived of his liberty except on such ground and in accordance with such procedure as are established by law.” In Forti v. Suarez- mason, the plaintiffs brought a suit under the ATCA and alleged claims of arrest and detention for over four years with charges. The second circuit pointed to the existing draft at the time of the Restatement generally considered as a traditional international law which viewed prolonged arbitrary detention as a violation of customary international law. Therefore, Judge Jensen held that prolonged arbitrary detention is actionable under ATS.

In the case of Sosa v. Alvarez Machain, the Supreme Court shed light on what actually constitute arbitrary detention. The plaintiff, Alvarez was a Mexican physician who was accused of prolonging the life of a Mexican agent of the United States drug enforcement agency to

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enable Mexican drug lords to torture and interrogate the agent. The DEA agent, Enrique

Camarena-Salazar, was murdered after a two day period of interrogation and torture. The U.S. government wanted the cooperation of the Mexican authorities in bringing the accused to face trial in the US, when that attempt failed, officers of the U.S. agency employed the services of

Sosa in kidnapping the plaintiff, the abductors held Alvarez captive for a night in a motel and transported him through a private plane to Elpaso, Texas in the United States where he was arrested by law enforcement agents. On acquittal in 1992, he filed a suit against the government, including its officials under ATCA over a number of charges. The district court found that there was no evidence of any kind of torture and that he could not collect damages for his detention after he was brought to U.S. soil, which left him with a claim of 24 hours of detention on Mexican territory before his forced relocation to the U.S.

The Supreme Court held that a single illegal detention of one day is insufficient to meet the narrow conception of arbitrary detention under international law. While in the case of

Kiobel v. Royal Dutch Petroleum, the district court accepted prolonged arbitrary detention of four weeks or more as an alleged result of a state policy to detain members of the Ogoni people who opposed oil exploitation, 456 F.Supp.2d 457, 456-66 (S.D.N.Y. 2006). Also in Doe v.

Liuqi, the district court ruled that plaintiffs who were detained for three or more days without access to family members or lawyers and tortured were subjected to arbitrary detention (349

F.SUPP.2d 1258, 1326 N.D. Cal. 2004). This corroborate the Restatement Principle “that arbitrary detention infringes customary law if it is prolonged and practiced as state policy”

(§702 Comment (h) 1987).

4.8 Torture, Cruel, Inhuman or Degrading Treatment

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Torture is generally regarded as the act of a person who commits or conspire or attempts to commit an act specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanction) upon another person within his custody or physical control for the purpose of obtaining information or a confession, punishment, intimidation, coercion or any reason based on discrimination of any kind.

Article 1, of the Torture Convention defines torture as any act by which severe pain or suffering , whether physical or mental is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from inherent lawful sanctions.

The use of torture also violates U.S. laws. In 1992, the US Congress passed a new act, the Torture Victim Protection Act, TVPA, Pub.L.No. 102-256, 106 Stat.73 (1992) codified at §

28 U.S.C 1350. The legislative history of the TVPA drum up support for the ATCA and the

Filartiga decision but unlike the ATCA which is restricted to only aliens, the TVPA is open to

U.S. and non U.S. citizens. The TVPA provides that; any individual who, under actual or apparent authority or under the colour of law, of any foreign nation subject an individual to torture, shall in a civil action be liable to for damages to that individual or subject an individual to extrajudicial killing shall, in a civil action, be liable for damages to the individual’s legal representative, or to any person who may be a claimant in an action for wrongful death.

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The Torture Victim Protection Act (TVPA) definition of torture is the same as conceptualized in the Torture Convention. The TVPA defines the mental element of torture as mental pain or prolonged mental harm caused by or resulting from; i) the intentional infliction or threatened infliction of severe physical pain or suffering, ii) the administration or application or threatened administration or application of mind altering substances or other procedures calculated to disrupt profoundly the senses or the personality, iii) the threat of imminent death, or iv) the threat that another individual will immediately be subjected to death, severe physical pain or suffering or the administration or application of mind altering substance or other procedure calculated to disrupt profoundly by the senses or personality.

Common Article 3 violations, regards torture, cruel or inhuman treatment as any conduct constituting a grave breach of common article 3 of the International Conventions done at Geneva August 12, 1949. It defines Cruel and Inhuman Treatment as the act of a person who commits, or conspires or attempt to commit an act intended to inflict severe or serious physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions), including serious physical abuse, upon another within his custody or control.

Article 7 of the ICCPR mandates that, “no shall be subjected to torture, cruel, inhuman or degraded treatment”. The modern use of Alien Torts Claims Act as a legal weapon started with an action against torture. In the water shed case of Filartiga v. Pena Irala, Dr. Joel

Filartiga, a prominent critic of the Stroessner regime in Paraguay and his daughter, Dolly

Filartiga filed a civil suit against a former inspector general of police, Americo Noberto Pena

Irala for the torture of his son to death in the district court for the Eastern District of Newyork.

At the first hearing, the plea invoked compassion, nonetheless the judge dismiss the case on the ground of lack of subject matter jurisdiction. The case was appealed and the decision of the

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lower court was reversed. Judge Kaufman, declared that in the light of the universal condemnation of torture in numerous international agreements and the renunciation of torture as an instrument of official policy by virtually all the nations of the world in principle if not in practice, we find that an act of torture committed by a state official against one held in detention violates established norms of international law of human rights and hence of the law of nations.

A significant aspect of this judgement, is that in reversing the decision of the lower court, the Second Circuit, made it clear that “. . . torture is violation of the law of nations and that courts must interpret international law not as it was in 1789, but as it has evolved and exists among the nations of the world today” (Filartiga, 630 F.2d at 884,881). The decision is now a binding precedence which all courts rely on in adjudicating cases on torture under the

ATCA. The court awarded $10 Million against the defender, he however fled without paying the fine, but nevertheless the verdict brought emotional sense of justice to the plaintiffs. Dolly

Filartiga, stated that: “I came to this country in 1978 hoping simply to confront the killer of my brother. I got so much more. With the help of American law I was able fight back and win. The truth overcame terror. Respect for human rights triumphed over torture. What better purpose can be served by a system of justice?” (http://www.nosafehaven.org/state_filartiga.html)

While the crime of torture is easily amenable to definition, cruel, inhuman or degrading treatment is coloured with ambiguity. The Convention against Torture in article 16 holds that

“each state party to the convention shall not allow such treatment not amounting to torture as defined in article 1, when undertaken under public authority”. In this provision there is no clear definition of cruel, inhuman treatment as was indicated in article 1, in respect of torture, instead it merely offers a description. In Forti v. Suarez-Mason, the plaintiffs alleged cruel, inhuman

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and degrading treatment against former Argentine general during detention by military personnel under the authority of the defender. The court sought guidance from the standard provided by Filartiga; and held that, there is no evidence of universal consensus in respect of the right to be free from cruel, inhuman and degrading treatment as it exists for official torture

(672 F. SUPP. 1531, 1536, 1543, N.D.Ca, 1987).

In a move to convince the court for reexamination, the plaintiffs presented several international instruments that aim to confirm the right against cruel, inhuman or degrading treatment, amongst which are the U.S. Restatement of the laws of foreign relations, the U.S. domestic statute 22 U.S.C 2304(d) i) which prohibits security assistance to countries with a record of human rights abuses; article 5 of the Universal Declaration of Human Rights and a decision of the Fifth Circuit, concerning De Sanchez v. Banco Central De Nicaragua 770 F.2d

1385, 1397 (5 th Cir. 1985), which acknowledge a “right not to be . . . tortured, or otherwise subjected to cruel, inhuman or degrading treatment”. Though the court recognizes that the cited sources demonstrates universal acceptance, but argues that it failed to state what conduct are actually prohibited, 694 F. Supp. at 711-12.

The plaintiffs further referred to the decision of the European Court of Human Rights which defines degrading treatment as conduct which grossly humiliate the victim before others or drives the victim to act against his will or conscience. However, the judge rejected it, on the ground that it is regional as opposed to global expression of consensus as shown in Filartiga, judge Jensen contend that, treatment of such kind would largely depend on the personal, cultural or religious context and that to be actionable, the torts must be characterized by universal consensus in international community as to its binding status and its content, Judge jenson therefore held that the plaintiffs had failed to establish anything approaching universal

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consensus as to constitutes cruel, inhuman or degrading treatment and dismissed the motion

(Krobelle, 2009:101-103).

On the other hand, in Abebe- Jira v. Negewo, the claimants who alleged cruel, inhuman and degrading treatment, claimed that there subjected to severe mistreatment which in included being stripped naked, hung from a pole and beaten with wires and salt water pour on their wounds following their arrest by the Ethiopian government had legal relief as Judge Tidwell of the Northern District of Georgia declared that the plaintiffs had shown sufficient evidence of cruel, inhuman and degrading treatment. In rendering judgement, the court posits that the prohibitions are part of foremost human rights instruments including the ICCPR and the convention against torture which were ratified by the United States (Krobelle, 2009:104).

In Hilao v. Estate of Marcos, victims of Philippine Ferdinand Marcos filed a suit for injuries sustained arising from human rights, the district court refused to instruct the jury on cruel, inhuman and degrading treatment (as opposed to torture) and therefore the claims were struck out, however, when relatives of economist Winston Cabeto brought a suit for the mistreatment and torture, the court refered to article 7 of the ICCPR, its ratification by the

United States and held that cruel, inhuman or degrading treatment is actionable under ATS, “to the extent that courts read article 7 of the ICCPR as legal authority equivalent to the fifth, eight and fourteenth amendment of the bill of rights (157 F.Supp.2d 1345, S.D. 2001).

Similarly, in Tachiona v. Mugabe (221 F.Supp.2d 1116, 1162 C.D.Cal. 2002), involving the violations of human rights of political opponents in Zimbabwe, Judge Marero ignored Forti and substantial claims based on ATS due to the general recognition of a separate human right not to be subjected to cruel, inhuman and degrading treatment as contained in international law provision and he accepted the claims as long the misconduct would also be violative of the

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fifth, eight or fourteenth Amendment to the United States constitution (Kroebele, 2009: 105). In

Wiwa v. Royal Dutch Shell, the district court found that several abuses came under the scope of cruel, inhuman or degrading treatment and therefore justiciable under the ATS.

There is increasing corpus of jurisprudence in international tribunal that is contributing towards the recognition of cruel, inhuman or degrading treatment as a human right. This is highlighted in Mujica v. Occidental Petroleum Corp. In this case, helicopters of the Colombian

Military knowing attacked civilians which resulted in several injuries, the judge of the Central

District of California referred to the international tribunals for the former Yugoslavia and

Rwanda for the affirmation of such norms in their jurisdiction and held that the tort is actionable under the ATS (Kroebelle, 2009:106).

4.9 Extra Judicial Executions

The International Covenant for Civil and Political Rights, Article 6 provides that every human being has the inherent right to life. In Trajano v. Marcos, 978. 2d 493, 495-96 ( 9 th

Cir.1992), the litigants brought a plea under the ATS against former Philippine’s ruler and his daughter who’s son was kidnapped and tortured to death by the military intelligence officers for asking a provocative questions at a university presentation program by Marcos’ daughter. The

Court of Appeal for the Ninth Circuit ruled that wrongful death, committed by the military intelligence amounted to a violation of the law of nation and therefore justiciable under the

ATCA. Kroebelle (2009: 91) notes that in many earlier cases, the issue was drafted as one of torture as the Filartiga precedent shows in respect of a victim who was tortured to death.

The right to life is rightly regarded as the supreme right because the taking of one’s life automatically deprives him or her from exercising all other rights which therefore implies that the right to life is ascribed as one belonging to customary international law. In Wiwa v. Royal

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Dutch Shell, the appellants under the ATCA contend that Shell was complicit in the extra judicial killing of Ken Saro Wiwa and other Ogonis for protesting SPDC’s environmental degradation policies in Ogoni land. According to the complaint, while these infringements were carried out by the Nigerian government and military, they were instigated, orchestrated, planned, and facilitated by Shell Nigeria under the direction of the defendants. The Royal

Dutch/Shell Group allegedly provided money, weapons, and logistical support to the Nigerian military, including the vehicles and ammunition used in the raids on the villages, procured at least some of these attacks, participated in the fabrication of murder charges against Saro-Wiwa and Kpuinen, and bribed witnesses to give fake testimony.

Appellants filed this action on November 8, 1996 and filed an amended complaint on

April 29, 1997. The amended complaint seeks damages under the ATCA, the Racketeering

Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. § 1961-1968, international law and treaties, Nigerian law, and various state law torts. More specifically, the complaint alleges that the defendants are liable for summary execution; crimes against humanity; torture; cruel, inhuman, and degrading treatment; arbitrary arrest and detention; violations of the rights to life, liberty, security of the person, and peaceful assembly and association; wrongful death; assault and battery; intentional and negligent infliction of emotional distress and conspiracy. At the time of the filing, two of the four plaintiffs (Blessing Kpuinen and Owens Wiwa) lived in the

United States, though not in New York (ASIL, 2001:483)

The Defendant Royal Dutch is a holding company incorporated and headquartered in the Netherlands. Defendant Shell Transport is a holding company incorporated and headquartered in England. The two defendants jointly control and operate the Royal

Dutch/Shell Group, a vast, international, vertically integrated network of affiliated but formally

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independent oil and gas companies. Among these affiliated companies is Shell Petroleum

Development Company of Nigeria, Ltd. ("Shell Nigeria"), a wholly-owned Nigerian subsidiary of the defendants that engages in extensive oil exploration and development activity in the

Ogoni region of Nigeria.( ASIL, 2001:482)

Defendants moved to dismiss the suit for lack of personal jurisdiction, forum non conveniens, and failure to state a claim. In a Report and Recommendation of March 31,1998,

Magistrate Judge Henry Pitman recommended that Judge Wood dismiss the case for lack of jurisdiction or, alternatively, for forum non conveniens. Explicitly reserving the "difficult" questions of substantive law raised by the defendants' 12(b)(6) motion, Magistrate Judge

Pitman found that neither the maintenance of the Investor Relations Office nor the defendants' direct actions in New York, were sufficient to constitute "doing business" in New York, as required to establish general jurisdiction under N.Y. C.P.L.R. § 301. Turning to the forum non conveniens issue, he determined that England was an "adequate alternative forum".

Upon plaintiffs' objections to the Magistrate Judge's Report, Judge Wood, by order dated September 25, 1998, found that jurisdiction over the defendants was established under §

301 by virtue of their maintenance of the Investor Relations Office in New York, but accepted the Magistrate Judge's recommendation to dismiss for forum non conveniens. However, the

Supreme Court decisions of 1947 in laying out the framework for forum non conveniens analysis that the federal courts follow to this day is instructive. Gulf Oil Corp. v. Gilbert, 330

U.S. 501 (1947); Koster v. American Lumbermens Mut. Cas. Co., 330 U.S. 518 (1947).

Under these cases, forum non conveniens is a discretionary device permitting a court in rare instances to "dismiss a claim even if the court is a permissible venue with proper jurisdiction over the claim." PT United Can Co. v. Crown Cork & Seal Co., 138 F.3d 65, 73 (2d 202

Cir. 1998); see also Gilbert, 330 U.S. at 507. In assessing whether forum non conveniens dismissal is appropriate, courts engage in a two-step process: The first step is to determine if an adequate alternative forum exists. See, e.g., Piper Aircraft Co. v. Reyno, 454 U.S. 235, 254 n.22 (1981); Gilbert, 330 U.S. at 506-07. If so, courts must then balance a series of factors involving the private interests of the parties in maintaining the litigation in the competing fora and any public interests at stake. The defendant has the burden to establish that an adequate alternative forum exists and then to show that the pertinent factors "tilt strongly in favor of trial in the foreign forum." R. Maganlal & Co., Gilbert, 330 U.S. at 506-08 (ASIL, 2001:488).

Plaintiffs appeal challenged both prongs of the district court's finding. As to the first prong, they dispute the adequacy of a British forum, because three doctrines of English law- double actionability, transmissibility, and the act of state doctrine-would potentially bar a

British court from reaching the subject matter of this dispute. As the parties' experts describe the British law, the doctrine of double accountability states that, with limited exceptions, torts committed in other countries are actionable in England only if they would be actionable under both English law and the law of the country in which the act was committed. The doctrine of transmissibility holds that the question whether a decedent's claims transfer to his survivors is determined by the law of the decedent's nation. The act of state doctrine bars, on comity grounds, the consideration of certain claims arising out of the official actions of foreign governments. In the view of the Appeal Court on the analysis of the forum non conveniens, the court believes the rule of law applied by the district court was faulty, in the following respects:

(a) the District Court (a) The district court counted against retention of jurisdiction that the plaintiffs were not residents of the Southern District of New York while failing to count in favor of retention that two of the plaintiffs were residents of the United States, and (b) the court

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failed to count in favor of retention the interest of the United States, as expressed in the TVPA, in providing a forum for the adjudication of claims of torture in violation of the standards of international law. Furthermore, the Magistrate Judge, whose findings were adopted by the district court, gave no consideration to the very substantial expense and inconvenience (perhaps fatal to the suit) that would be imposed on the impecunious plaintiffs by dismissal in favor of a

British forum, and the inconvenience to the defendants that ultimately justified the dismissal seems to us to have been minimal.

Furthermore, the Appeal court asserts that the conclusions of the district court in deciding whether to dismiss for forum non conveniens are given substantial deference and are not overturned except on a finding of abuse of discretion. See, e.g., Peregrine Myanmar Ltd.,

89 F.3d at 46. On the other hand, where the district court has not applied the correct rule of law, the same deference does not apply See, e.g., Guidi, 2000 WL 1158788. The issue of forum non conveniens is not settled by adding to the mix the considerations favoring retention arising from the U.S. residence of two of the plaintiffs and the policy expressed in the TVPA favoring adjudication of claims of torture in violation of international law. If the defendants advanced substantial interests supporting dismissal in favor of a British forum we would either remand to the district court for reconsideration or, if the defendant’s interests were sufficiently substantial, sustain the dismissal notwithstanding our identification of interests in favor of retention that the district court did not consider. In our view, however, the defendants have offered only minimal considerations in support of an English forum. This is not a case like Piper where there is an obviously better suited foreign forum for the adjudication of the dispute. See Piper, 454 U.S. at

238-39 (dismissal of case so that it could be litigated in Scotland, site of plane crash). Nor does it involve substantial physical evidence that is difficult or expensive to transport. Cf., e.g., id. at

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242-43 (plane crash in Scotland); In re Union Carbide, 809 F.2d 195 (environmental disaster in

India). For any nonparty witnesses, the inconvenience of a trial in New York is not significantly more pronounced than the inconvenience of a trial in England.

In arguing that England is a more appropriate forum, defendants rely upon arguments such as the inconvenience of shipping documents from England to the United States and the additional cost for a Nigerian witness of flying to New York rather than London. These considerations are indeed a legitimate part of the forum non conveniens analysis, but (a) the defendants have not demonstrated that these costs are excessively burdensome, especially in view of the defendants' vast resources, cf. Calavo Growers of California v. Generali Belgium,

632 F.2d 963,969 (2d Cir. 1980). ("It will often be quicker and less expensive to transfer a witness or a document than to transfer a lawsuit."), and (b) the additional cost and inconvenience to the defendants of litigating in New York is fully counterbalanced by the cost and inconvenience to the plaintiffs of requiring them to reinstitute the litigation in England courts - especially given the plaintiffs' minimal resources in comparison to the vast resources of the defendants.

These considerations cannot justify overriding the plaintiffs' choice of forum.

Defendants argue that England has a public interest in adjudicating this action. In particular, they argue that (1) Shell Transport is a British corporation whose liability for the actions of its subsidiary is likely to be governed by British law; and (2) Nigeria was at the time of the actions in question a member of the Commonwealth of Nations. Although these factors do bear consideration, they are not overriding. To the same extent that England may have an interest in adjudicating matters affecting a British corporation; the United States courts have an interest in adjudicating matters affecting its residents. Also, while one defendant is a British corporation

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whose actions are governed by British law, the second defendant is not British, but Dutch. The fact that Nigeria was at the time a member of the voluntary consortium of nations constituting the Commonwealth is of no particular significance.

In order to be granted dismissal based on forum non conveniens, the defendants bear the burden of establishing that the Gilbert factors tilt strongly in favor of trial in the foreign forum." R. Maganlal & Co., 942 F.2d at 167. The Appeal court believes they have failed as a matter of law to meet this burden. The factors weighing against dismissal include (1) the substantial deference courts are required to give to the plaintiffs choice of forum, (2) the enormous burden, expense, and difficulty the plaintiff s would suffer if required to begin the litigation a new in England, (3) the policy favoring U.S court's retention of such suits brought by plaintiffs who are residents of the United States, and (4) the policy expressed in the TVPA favoring adjudication of claims of violations of international prohibitions on torture. These factors are more than sufficient to overcome the defendants' weak claim for dismissal based on forum non conveniens. The Court of Appeal therefore reversed the district court’s ruling and remanded the case to the district court for further proceedings. Remedies were then provided to the families of the decedents. The table below therefore shows the summary of selected cases and remedies provided by the Alien Torts Claims Act.

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Table 4.9.1 Summary of Remedies under the ATCA Case Type of Suit Claim Type Compensatory Punitive Damage Damage Filartiga v. Pena Individual Plaintiff Torture and Murder $385,000.00 in $10 Million in Punitive Irala. The first transnational human rights compensatory damages 630 F.2d 876 (2d Cir. case successfully brought under damages. 1980) international law. Plaintiff sued a Paraguayan police officer who had tortured and killed his son in Paraguay. It was the first case to recognize torture. Forti v.Suarez- Class Action Torture, arbitrary detention, $3 Million in $3 Million in punitive damages Mason. disappearance and degrading compensatory 694 F.Supp.707 treatment damages (N.D.Cal. 1987) This case successfully recognized disappearance under ATCA, but not claims for cruel, inhuman or degrading treatment, where plaintiffs were detained by military authorities in Argentina. Paul v. Avril Class Action Cruel, Inhuman and Degrading $2.5 Million-$3.5 each $4 Million in punitive damages 812 F.Supp.207; 901 Treatment in compensatory F.Supp.330 (S.D. Fla. Haitian citizens sued the military damages 1994) government of Haiti for abuses ranging from starvation perpetrated by soldiers. This was the first case to recognize cruel, inhuman and degrading treatment under ATCA In re Estate of Class Action Claims Against the Estate of Former $766 Million in $1.2 Billion in punitive Ferdinand Marcos, Philippines Dictator compensatory damages Human Rights damages Litigation 25 F.3d 1467, 1475 (9 th Cir. 1994) Quiros de Rapaport Class Action Torture, murder and Disappearance $15 Million in $15 Million in punitive v.Suarez Mason compensatory damages damages

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Trajano v. Marcos Class Action Torture, Extrajudicial Killing and $4,161,000.00 878 F.2d 1439 (9 th Arbitrary Detention Cir.1989) Abused Philipino citizens filed a suit against soldiers and authorities of the Philippine government, including Ferdinand and Imelda Marcos

In re Holocaust Victims Class Action Aiding and Abetting Nazi Regime in $1.25 Billion in Asset Litigation war crime, crimes against humanity, compensatory 105 F.Supp.2d 139, 141 crimes against peace, slave labour and damage (E.D.N.Y. 2000) genocide Xuncax v. Gramajo Class Action Torture and Assault $2Million in $5Million in punitive 886 F.Supp.162 (D.Mass. The former Guatemalian minister of compensatory damages 1995) Defense was sued by Guatemalian damages for And $2Milion in citizens and an American for charges of summary execution punitive damages for torture, assault and false imprisonment and $1million in torture victims compensatory damage for torture victims Doe v. Unocal Corp. Class Action Forced Labour, Murder, Rape and $30 Million for Establishment of a 403 F.3d 708 (9 th Torture compensatory trust fund to pay for Cir.2005) Burmese plaintiff sued Unocal, a US damages improvement to the corporation for aiding and abetting area in which the forced labour, murder, rape and torture abuses took place Sosa v. Alvarez-Machain Individual Plaintiff Arbitrary Detention $10 Million for 542 US- (2004) Mexican citizens helped the US Drug compensatory Enforcement Administration to kidnap damages another Mexican citizen and brought him to the US where he was tried and acquitted for alleged involvement in the death of a DEA agent. On appeal, the Supreme Court reversed the lower court holding that the abduction was justiciable under ATCA Wiwa v. Royal Dutch Class Action Summary Execution, Crime against $15.5 Million for $5 Million for the Shell Humanity, Torture, Cruel, Inhuman and compensatory establishment of a 208

2002 US. Dist. Lexis Degrading Treatment, Arbitrary Arrest damages trust fund 3293 (S.D.N.Y. 2002) and Detention Nigerian plaintiff were arbitrarily detained, shot, beaten and hung by the Nigerian military government in conjunction with a multinational oil company Abebe-Jira v. Negewo Class Action Torture, cruel, Inhuman and Degrading N/A N/A 72 F.3d 844 (11 th Cir. Treatment 1996) Court of Appeal affirmed judgement for compensatory and punitive damages against military dictatorship on behalf of Ethiopians. Kadic v. Karadzic Class Action Summary Execution, Torture, Rape and N/A N/A 70 F.3d 140 (2d. Cir. Detention 1995) The court found the leader of the Bosnian Serb army liable for killings, torture, rape, detention committed by the army because of plaintiff’s ethnicity and religion. Mehinovic v. Vuckovic Class Action War crimes, Torture and Degrading N/A N/A 198 F.Supp.2d 1322 Treatment (N.Ga. 2002) Four refugees sued a former Bosnian Serb commander under ATCA for torture, degrading treatment and war crimes committed during the ethnic cleaning campaign. Plaintiff’s recovered compensatory and punitive damages Source: Earths Rights International (2004: 59-71) In Our Court: ATCA, SOSA and the Triumph of Human Rights , Washington. Koebele, M. (2009: 90) Corporate Responsibility under the Alien Torts Claims Statute: Enforcement of International Law through US Torts Law Leiden-Boston: Martinus Nijhoff Publishers.

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The table shows various human rights infringement and how the ATCA has become a tool in addressing global human rights abuses; but wining a case through the ATCA is also difficult, because almost half of the corporate cases were dismissed on the ground of forum non conveniens (ERI, 2004). The uniqueness of the Alien Torts Claims Act has been demonstrated in its ability to provide a remedy for victims of the international laws of armed conflicts by allowing aliens to bring actions for torts in U.S Courts regardless of where the torts occurred.

However, the court may refuse to entertain an ATCA claim under the doctrine of forum non conveniens. The doctrine of forum non convenience is a limitation victim of human rights abuse face in civil rights litigations.

Defenders invoke this doctrine only after jurisdiction has been established and process has been properly served and also when they wish to remove a case into the jurisdiction where the alleged injury occurred or into another jurisdiction that has a more substantial connection or sympathy. The court will likely consider, factors such as the location of the evidence and witnesses and convenience to both parties in deciding whether to dismiss the case. However, corporate defenders are particularly likely to invoke this doctrine because they stand to gain from having their cases moved to jurisdiction with less stringent laws or properly structured legal system (Mostajelean, 2008)

However in cases where the ATCA has succeeded it had helped in cessation of conflict.

In the case of Wiwa v. Royal Dutch Shell, the defendants on the eve of trial reached for a settlement. The settlement, whose terms are public, provides a total of US$15.5 million. These funds compensate the 10 plaintiffs, who include family members of the deceased victims; cover

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a portion of plaintiffs’ legal fees and a Trust. US$5 million was provided for the establishment of a Trust intended to benefit the Ogoni people (www.ccrjustice.org; www.earthsrights.org).

The object of the “Trust Fund”, is to provide some benefit to the Ogoni people for the purpose of education, health, community development and other benefits for the Ogoni people and their communities, including educational endowments, skills development, women’s programme, agricultural development, small enterprises support and adult literacy. Governance of the “Trust” is independent from plaintiffs and defenders in pursuant of the settlement agreement which ended a 13 years legal battle. In the words of the Plaintiff Ken Saro-Wiwa,

Jr., the son of Ken Saro-Wiwa explained, “In reaching this settlement, we were very much aware that we are not the only Ogonis who have suffered in our struggle with Shell, which is why we insisted on creating the Kiisi Trust.” The Kiisi Trust—Kiisi means “Progress” in the plaintiffs’ Ogoni language (www.wiwa_v_shell_settlements_and_orders).

Judith Chomsky, an attorney with the Center for Constitutional Rights (CCR), one of the attorneys who initiated the lawsuit, stated, “The fortitude shown by our clients in the 13- year struggle to hold Shell accountable has helped establish a principle that goes beyond Shell and Nigeria—that corporations, no matter how powerful, will be held to universal human rights standards.” Also, Jennie Green, the CCR staff attorney who initiated the lawsuit in 1996, stated that, “this was one of the first cases to charge a multinational corporation with human rights violations, and this settlement confirms that multinational corporations can no longer act with the impunity they once enjoyed” (www.ccrjustice.org; www.earthsrights.org and www.sdshh.com ).

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4.10 Reconciliatory Process

The production of oil in Ogoniland has not yet resumed since its cessation in 1993, however, crude and refined oil products transit the region through pipelines. The main SPDC oil pipeline, or trunk line, from upstream production areas runs to the export terminal at Bonny, while the pipelines from bonny terminal to Port Harcourt refinery and from Port Harcourt refinery to Umu Nwa Nwa also pass through Ogoniland. These infrastructures have not been decommissioned as a result they had suffer from . . . community attack (UNEP, 2011:25; 35), and the damages resulting from such attack are estimated to be over $50 million (Boele, et al

2001:83). However, the compensation provided by the U.S. Alien Torts Claims Act against

Royal/Dutch Shell in June 8 th 2009, led to the cessation of hostilities between Shell and the

Ogoni communities in Rivers state and ignited a reconciliation process between the federal government, Oil Corporation and Ogoniland. The federal government appointed, an impartial, international agency, the United Nations Environment Programme to conduct a comprehensive assessment of the environmental and public health impact of oil contamination in Ogoniland, together with options for remediation. Based on the mandate from the Government of Nigeria, the UNEP set out to:

1. Undertake a comprehensive assessment of all environmental issues associated with the

oilfield related activities in Ogoniland, including the quantification of impacts

2. Provide useful guidance data to undertake remediation of contaminated soil and groundwater

in Ogoniland

3. Provide specific recommendations regarding the scope, modalities and means of remediation

of soil and groundwater contamination

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4. Technical evaluation of alternative technologies which could be employed to undertake such

remediation

5. Provide recommendations for responding to future environmental contamination from

oilfield operations

6. Provide recommendations for sustainable environmental management of Ogoniland

7. Enhance local capacity for better environmental management and promote awareness of

sound environmental management and sustainable development

8. Be part of the peace dividend and promote ongoing peace building effort (UNEP, 2011:52).

The successful environmental assessment of Ogoniland called for community involvement. In the period between November 2009 and January 2011, more than 23,000 people participated in 264 formal communities meeting, with an initial town hall meeting of over 15,000 people participating. These community engagement enabled UNEP to gain access to areas contaminated by oil as well as consent for access to land and waterways which enabled the team to achieve all its stated objectives and subsequently provided a comprehensive environmental assessment of Ogoniland as well as the proffering of viable solutions to the federal government (UNEP, 2011).

In this light the study accepts the hypothesis that the compensation provided by the U.S

ATCA reduces the pressure of opposition against the commercial activities of Oil Corporation in Ogoniland of Nigeria’s Niger Delta.

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CHAPTER FIVE

SUMMARY, CONCLUSION AND RECOMMENDATION

5.1 Summary of Findings

The study sets out to ascertain the implications of the enforcement of the United States

Alien Torts Claims Act on human rights infringement in Ogoniland of Nigeria’s Niger Delta.

Specifically, the objectives include determining whether international regulatory mechanisms on human rights and NGO activities reduce the incidence of human rights infringement in

Ogoniland. Investigating whether the military treaty between the Nigerian government and the government of the United States undermine the capacity of the Nigerian government to enforce the liability of oil corporations for human rights infringement in Nigeria’s Niger Delta, and whether the compensation provided by the U.S. Alien Torts Claims Act reduce the pressure of opposition against the commercial activities of oil corporations in Ogoniland of Nigeria’s Niger

Delta.

The aim is to advance a policy framework which could be used to halt oil conflict and to improve the governance of resource management which will in turn end human rights infringement and promote sustainable development in Nigeria’s Niger Delta. The theory of the rentier state as a unit of empirical analysis was adopted. This is based on the contention that there is an oil-rentier nexus which underscores the uninterrupted flow of oil rents to the state as well as profit to the oil corporations and their home governments. The consequence of oil dependency creates oil externalities which engenders the systematic destruction of the productive forces in Nigeria’s Niger Delta which constitute a setback on development.

The study was based on observation derived from documentary sources of recorded human documents, such as case laws, charters, treatise, United Nations documents, African

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Commission of Human and People’s Rights document, nongovernmental organization’s documents, internet documents, text books, unpublished materials, journals, magazines, newspapers and field observation. In order to analyze the data we adopted qualitative descriptive analysis with the application of the single case pre-test - post-test quasi experimental design which was also used in controlling internal threats to validity. The information derived was used in evaluating the research hypotheses. Three hypotheses were tested, these are:

(1) International regulatory mechanism on human rights and NGO activities tend to reduce the incidence of human rights infringement in Ogoniland of Nigeria’s Niger Delta. (2) Nigeria/US Government military treaty tends to undermine the Nigeria’s Government capacity to enforce the liability of oil corporations for violations of international law in Nigeria’s Niger Delta. (3) The remedy provided by the US Alien Torts Claims Act tends to ease the pressure of opposition against the commercial activities of oil corporations in Ogoniland of Nigeria’s Niger Delta.

Based on the first proposition, the research findings shows that they are several international regulatory instruments which provide standards for oil corporations and host governments, the findings however indicates that these instruments are soft law agreements which are broadly worded, more so they do not spell out specific proscription and sanctions, as such the principles enunciated do not create binding obligations that states have universally acknowledged as binding on them; similarly corporations do not feel obligated to self impose these voluntary codes that promote environmental protection and human rights against profit and shareholders interest; they are thus regarded as merely aspirational principles which provided a normative program for the world community. Consequently, international courts often overrule these

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declarations as proper evidence of customary international law, thus creating an accountability gap.

Following this limitation, international nongovernmental organizations as unit of civil society have become more involved in monitoring the implementation of standards through advocacy, by organizing national and international campaigns for particular kinds of policy or legislative changes, monitoring and exposing the actions and inactions of governments and corporations and organizing trade boycotts in consumer countries against recalcitrant transnational corporations whose commercial activities promote conflict in developing countries.

The findings of the study further shows that international nongovernmental organizations like the Centre for Constitutional Rights have brought approximately one hundred and thirty past cases and over fifty present cases to U.S. courts on behalf of victims of human rights abuses across the world, similarly, Earth Rights International have filed numerous legal suits in U.S. courts on behalf of people around the world whose earth rights have been violated by governments and transnational corporations. It was found that the legal suit brought on behalf of members of Ogoni community by Centre for Constitutional Rights and Earth Rights International to the U.S court brought redress to the plaintiffs. In this light the study showed that international regulatory mechanisms on human rights and NGO activities reduce the incidence of human rights infringement in Ogoniland.

In the examination of the second research hypothesis; that the military treaty between the United States government and the government of Nigeria undermine its capacity to enforce the liability of oil corporations for violations of international law in Nigeria’s Niger Delta. The findings of the study show that both Nigeria and the United States are oil dependent countries.

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The United States is the world’s largest oil consumer nation and depends on oil imports for its industrial, military, economic and social life in order to secure its core value, Nigeria on the other hand depends solely on oil export revenue for economic survival. These relations to oil production has made Nigeria a significant U.S. trading partner, accounting as the 5 th largest supplier of oil to the United States.

Statistical findings shows that by 2025, U.S. oil consumption is projected to rise by at least 50 percent above today’s level of 20 million bb/d; and that imports are likely to rise from

12 million bb/d to as much as 20 million bb/d, it also indicates that more than half of these imports will come from OPEC of which 57 percent will be imported from the Persian Gulf and about 42 percent from Latin America; the findings therefore indicate that Nigeria could provide as much as 25 percent of U.S. import. In 2006 alone, the U.S. imported 1.045 million b/d of oil from Nigeria, which is about 10 percent of U.S. crude import.

The findings also show that the United States foreign policy and its energy policy are interconnected and it is a U.S. stated policy to resort to military force in protecting its energy supply which she regards as national security. Thus, in order for the United States to safeguard the uninterrupted access to Nigeria’s oil, the United States Government engages in a military security pact with the Nigerian State. Currently the U.S. military patrols the Gulf of Guinea and trains Nigerian Security forces. The empirical data in tables 3.2.3; 3.2.4; 3.2.5; and 3.2.6; shows a consistent stream of security assistance for Nigeria from the financial year 1999 to

2010.

The United States Government also instituted several bilateral and multilateral military cooperation in Africa; such as the Trans-Saharan counter terrorism partnership (TSCTP);

African contingency operation training and assistance program (ACOTA); international

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military education and training program (IMET); foreign military sales program (FMS);

African coastal and border security program (ACBS Program); excess defense articles program

(EDA); anti terrorism assistance (ATA); section 1206 fund; naval operation in the Gulf of

Guinea; Flintlock 2005 and 2007 and Joint task force Aztec silence. Statistical evidence from table 3.2.3 shows United States government’s military pacts with African countries in which the Nigerian Government is also a major beneficiary. Accordingly, the findings of the study show that the U.S. Government’s dependence on Nigeria’s oil and its military pact with the

Nigerian state for oil security puts on hold Nigeria’s Government capacity to mediate oil conflict and to enforce the liability of oil TNCs for violations of international law in Nigeria’s

Niger Delta.

The analysis of the third hypothesis shows that the remedies provided by the U.S. Alien

Torts Claims Act reduce the pressure of opposition against the commercial activities of oil corporations in Ogoniland. The study found that the Alien Torts Claims Act provides compensatory awards for damages against violations of international law or the law of nations and a non U.S. resident can successful assert a claim against a tort-feasor under the Alien Torts

Claims Act in a U.S. court.

The findings of the study show that the Nigerian Government in collaboration with

Royal/Dutch Shell committed acts of torture, crimes against humanity, cruel, inhuman and degrading treatment, arbitrary arrest and detention, including summary execution against members of the Ogoni communities in Rivers state for protesting against Royal Dutch/Shell’s environmental degradation policy. The families of the decedents brought a class action suit against Royal Dutch/Shell under the ATCA, for the corporation’s complicity for human rights abuses and on the eve of trial, a settlement for a compensation of $15.5 million was awarded to

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the plaintiffs. The term of agreement also provided for the establishment of a “Trust Fund”, for the purpose of education, health, community development and other benefits for the Ogoni people and their communities, including educational endowments, skills development, women’s programme, agricultural development, small enterprises support and adult literacy. In this light the study found that the granting of compensatory and punitive damages against

Royal/Dutch Shell by the ATCA provision led to the cessation of hostilities between SPDC and the Ogoni communities.

5.2 Conclusion

In view of the above we conclude that the Alien Torts Claims Act is an available potent legal enforcement tool that holds transnational oil corporations legally accountable for violations of international law in Nigeria’s Niger Delta in spite of the incapacity of the Nigerian state to enforce international law provision. It also has the knock on effect to roll back the pressure of opposition against the commercial activities of oil corporations despite the military might and violent retribution of the Nigerian state with connivance of the military logistics of the government of the United States to ensure the uninterrupted flow of oil commodity.

5.3 Recommendations

From the insight gleaned from the findings and conclusion, we proffer that the most likely policy option is that:

(a) The government of the home state of oil corporations should ensure that people whose fundamental human rights are violated by the operations of oil corporations domiciled in their territory should have unhindered access to effective remedy through the legal system. (b) The Nigerian government should abrogate obnoxious laws that disempowered local and oil bearing communities and embark on a comprehensive review of the constitution.

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(c) The Government should embark on the implementation of its domestic court decisions regarding the claims of local litigants in the oil bearing communities. These also involve implementing the recommendations of panels and committees which the government itself has established to examine specific problems. (d) The Government should ensure the implementation of the recommendation of the African Commission on Human and Peoples Rights, including the ratification and domestication of international standards and codes. This will also imply regular reporting to treaty bodies and fulfilling its obligation. (e) The Government should review its compensation and reparation regime with respect to oil externality and establish an effective system of oversight in the oil industry which will factor the social and human rights impact of the industry. (f) Government should embark on a deliberate policy of infrastructural and human development in the Niger Delta so as to build legitimacy. (g) The oil corporations should embark on a comprehensive clean up and remediation of all oil affected areas in alliance with the local communities and publicly disclose all transactions for the purpose of transparency and accountability. (h) Corporations should undertake memorandum of understanding between them and the host communities and ensure compliance to the terms of agreement. (i) Corporations should respect and implement court decisions in regard to domestic litigation cases. (j) Corporations should strive to maintain the same corporate universal standards in environmental and labour practice in the Niger Delta.

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CASE LAWS

African Commission on Human and Peoples’ Rights (2001) Decision on Communication of the Social and Economic Rights Action Centre (SERAC) and the Centre for Economic and Social Rights (CESR) V Nigeria (155/96), Para 54. The decision was adopted at the 30 th ordinary session of the African Commission of Human and Peoples’ Rights, Banjul,13-27 October 2001 (SERAC and CESR v Nigeria), Available at http:www1.umn.edu/humanrts/Africa/comcases/155-96b.htm

ATCA – 28 U.S.C§1350 (2000)

Abebe-Jira v. Negewo. 72 F.3d 844,847 (11 th Cir.1996)

Amlon Metals Inc. v. FMC Corp. 775F.Supp.668 (S.D.N.Y.1991)

Aguinda V. Texaco, 303 F.3d 470, 480 (2d Cir.2002)

238

Beanal v. Freeport Mcmoran Inc. 969 F.Supp.362 (E.D.CA.1997)

Bowoto v. Chevron, Tex. Corp, 312 F.Supp. 2d 1229 (N.D. Cal, 2004)

Doe1 V. Unocal Corporation, 110 F.SUPP. 2d 1294 (C.D.Cal, 2000)

Doe1 V. Unocal Corporation, WL 31063976 at 11, 13, 15, 17 (2002)

Filartiga v. Pena - Irala. 630 F.2d 876 (2d Cir.1980)

Flores v. Southern Peru Copper Corp.343 F.3d 140 (2d. Cir.2003)

Iwanowa v. Ford Motors Co. 67 F. Supp.2d 424,443 (D.N.J 1993)

Paul v. Avril, 812 F.Supp.207, 212 (S.D. Fla.1993)

Kadic v. Karadzic, 70 F.3d 232,242-244 (2d Cir.1995)

SPDC v HRH Chief GBA Tiebo V11 and four others, 19960, 4 NWLR, Part 445 p.657

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United States of America v. Karl Brandt, et al. Trials of war criminals before the Nuremberg Military Tribunals under control council law no.10, October, 1946-April, 1949.

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UNPUBLISHED WORKS

Luvhengo, V (2006) “Multinational Corporations and Human Rights Violations in African Conflict Zones: The Case Study of Angola, 1992- 2005”, M.A Thesis, Department of International Relations, University of Witwatersrand: Johannesburg.

Odoh, S. I. (2008) “Oil Politics and Nigeria-United States Relations, 1999-2007”, A Ph.D Dissertation, Department of Political Science, University of Nigeria, Nsukka.

Saro-Komene, A. (2004) “Human Rights Violations and Sustainable Development: The Ogoni Experience,” Unpublished M.sc Thesis, University of Port Harcourt.

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APPENDIX 1.

Cost of the Crisis in the Niger Delta Region

Date Incident Location Casualty Loss Outcome Jan.10, 2006 Unidentified gunmen carried Offshore E.A Field 4 Foreign oil 120,000 bpd attack on Royal Dutch/Shell oil Rivers State workers kidnapped facility Jan.11, 2006 Explosion on major crude oil Forcados, Delta State - 100,000 bpd pipeline operated by Royal Dutch/Shell Jan.15, 2006 Royal Dutch/ Shell facility was Port Harcourt 17 Soldiers were - attacked by MEND fighters killed, unknown numbers of militants and Shell’s employees also died Feb.13, 2006 Militants attacked a barge Wilbros; Port 9 workers abducted 115,000 bpd operated by US oil service Harcourt, Rivers state company; Blow up of crude oil pipelines and gas pipelines March, 18 2006 Militants blow up pipelines Italian oil company, 75,000 bpd Agip. March,11 2006 Militant Attack Italian oil contractor, Kidnap of 3 oil Saipem workers May,10 2006 An executive with the US based Port Harcourt, Rivers 1 Death - oil company, Baker Hughes was state shot and killed June, 2 2006 A Norwegian Offshore rig was Port Harcourt, Rivers 16 Crew members - Hostages released two days attacked state were kidnapped later June, 7 2006 Militants attack Shells natural Port Harcourt 6 Soldiers killed; 5 - gas facility South Korean contractors kidnapped June, 20 2006 Militants attack on Beaufort Port Harcourt 2 Filipinos - Freed 5 days later 243

International kidnapped July, 25 2006 Militants attack of Agip Flow Port Harcourt 24 workers taken Hostages released and Station hostages flow station abandoned by July 31 after pay off by Nigerian government August 3, 2006 German oil worker Guido Port Harcourt - - Released on August, 19 Schiffarth, a 62 year old with 2006. Bilfinger and Berger snatched from his car by men dressed as soldiers Aug.4,2006 Gunmen abduct oil workers Port Harcourt 3 Filipinos They were released 10 days later Aug.7,2006 Gunmen abduct 2 Norwegian Port Harcourt Freed on 15 th August,2006 and 2 Ukrainian oil workers Aug. 10, 2006 A Belgian and a Moroccan Port Harcourt Both released on August, contractors kidnapped 14 th 2006. Aug. 13, 2006 5 foreign oil workers, 2 Britons, Port Harcourt a German, an Irish and a Pole kidnapped from a night club; an American also kidnapped earlier that day Aug.21, 2006 Clash between MEND and Bayelsa 10 MEND fighters security agencies killed Aug.24, 2006 Attack on SAIPEM Port Harcourt An Italian Freed 5 days later kidnapped Sept.12, 2006 Militants attacked Chevron Delta 1 worker killed Offshore oil field Oct.2, 2006 Clash between Nigerian Soldiers 10 Soldiers killed and MEND fighters off the shores of the Niger Delta Oct.2, 2006 A Nigerian/Royal Dutch convoy Port Harcourt 25 Nigerian oil Released two days later was attacked workers abducted Oct.3,2006 Attack on a compound housing 7oil workers held Released on 21, October expatriate contractors for Exxon hostages Mobil Oct.4,2006 Nigerian Soldiers attacked a Rivers 9 Soldiers killed militant camp

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Nov.2,2006 Militant attack on P.Geo-service Bayelsa 2 foreign workers Freed on Nov.7, 2006 Ship kidnapped Nov.22, 2006 Clash between Nigerian Soldiers Rivers 1 Soldier died - - and militants when soldiers stormed a militant camp to rescue kidnapped oil workers Dec.7, 2006 Kidnap of foreign oil workers Rivers 3 Italians and 1 from a residential facility Lebanese kidnapped Dec.14,2006 Militants invade Shell Nun River Bayelsa 5 people kidnapped logistic base Dec.18,2006 2 Car bombs explode in Agip Port Harcourt company premise and Shell residential compound Dec.21, 2006 Militants attacked Obagi Delta 3 guards killed pumping station Jan.5, 2007 Gunmen kidnap Chinese telecom Port Harcourt 5 Workers Released 5 Chinese workers kidnapped telecom workers on Jan.18, 2007 Jan.10, 2007 South Korea’s Daewoo Bayelsa 1 South Korean and Freed on 12 Jan. 2007 Engineering and Construction 1 Nigerian were attacked kidnapped Jan.16, 2007 Militants attacked an oil vessel Rivers 3 people killed near Bonny Island Jan.20, 2007 Militants seized Cargo ship on Delta 24 Filipino crew Released on Feb.13, 2007 its way to Warri Port members taken hostage Jan.23, 2007 Gunmen kidnapped 2 Engineers, Port Harcourt an American and a Briton on their way to work Jan. 25, 2007 Gunmen kidnap Chinese Port Harcourt 9 workers They were released on National Petroleum worker with kidnapped Feb.4, 2007 Shell workers Feb.6, 2007 Filipino oil worker kidnapped Port Harcourt

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Feb.7, 2007 A Filipino woman with Total oil Port Harcourt co kidnapped by gunmen; a French oil worker, Gerard Lapora kidnap by gunmen Feb.17, 2007 4 young Nigerian men serving Port Harcourt as missionaries abducted from their apartment Feb.18, 2007 3 Croatian oil workers abducted Port Harcourt Mar.4, 2007 Major spill at a pipeline feeding Rivers State 150,000bpd the Bonny Export terminal due to sabotage May1, 2007 Expatriate workers from an Funiwa, Delta State 6 oil workers offshore facility owned by kidnapped Chevron were seized May 3, 2007 MEND seized foreign workers Rivers 8 Foreign workers 50,000 bpd from an offshore vessel kidnapped May 4, 2007 SAIPEM site was attacked Rivers Several oil workers 42,000 bpd causing shuts- in production wounded May 7, 2007 Protests caused Chevron to shut Abiteye, Delta State 98,000 bpd down the Abiteye Flow Station that feeds Escravos Export terminal. May 8, 2007 Three major oil pipelines (One Brass/Akassa, Bayelsa 170,000 bpd in Brass and two in in Akassa State area) run by Agip attacked May 10,2007 Protesters occupied the Bomu 77,000 bpd pipeline system causing Shell to shut in production feeding the Bonny light export terminal May 16, 2007 Gunmen attacked the country Ogbia, Bayelsa State home of the vice president May 28,2007 Protest resumed at the Bomu Bomu, Rivers State 40,000 bpd pipeline system. It made Shell to shut in crude oil production through its Nembe creek trunk pipeline after discovering a leak 246

June 14, 2007 Gunmen attacked the Ogainbiri Ogbainbiri, Delta 24 workers taken as flow station operated by Eni State hostages June 18, 2007 Militants overran the Chevron Eni Port Harcourt 30 innocent citizens Abiteye flow station causing shut died in the attack in crude oil production August, 2007 Militants attacked Port Harcourt Port Harcourt 30 people were destroying some public properties killed such as NNPC mega filling station Sept.10, 2007 Gunmen claiming to be MEND Southern Ondo 11 persons fighters kidnapped members of the kidnapped ruling PDP Oct.10, 2007 Attacked by MEND led to the 1 death recorded death of Colombian oil workers Oct.10, 2007 Naval warship, NNS Obuka Rivers State 1 death and 5 others deployed to secure the EA field sustained injury belonging to Shell attacked Oct.26, 2007 Oil workers kidnapped 6 Oil workers Oct.31, 2007 MEND attacked naval officer Rivers 1 Naval officer killed Nov.12, 2007 Niger Delta militants up to 35 Ibeno, Akwa Ibom A pregnant woman engaged naval officers manning allegedly killed, the Qua Iboe terminal of Exxon while 25 persons Mobil injured Nov.15, 2007 MEND attacked Shell facility Rivers Nov. 25, 2007 JTF Clashed with elements of Soku, Rivers state MEND near a natural gas facility run by Shell Dec. 4, 2007 MEND attacked Exxon Mobil Rivers 1 killed vessels Dec.31, 2007 Militants visited mayhem on Port Port Harcourt 4 Policemen and 11 Harcourt by invading two Police other persons lost stations at Trans Amadi and their lives Borokiri Jan.11, 2008 Petroleum tanker ship was attacked Port Harcourt 2 persons were at the Nigerian Ports Authority by reportedly injured; 3

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elements of MEND known as Naval officers were freedom freelance fighters killed MEND fighters attacked a military Shell Petroleum Feb.3, 2008 house boat stationed at the Shell TARA Manifold, TARA Manifold Bayelsa state Feb. 11, 2008 Gunmen attacked a supply vessel Kalaibama Channel, 2 Soldiers killed belonging to Total oil Nig. Ltd. Bonny Island MV Patience at Buoy 35 Feb. 11, 2008 Militants attacked a gunboat Rivers 4 people killed belonging to the Pathfinder Navy escorting NLNG boats from Port Harcourt to Bonny Mar.19, 2008 Exchange of fires between Rivers militants on oil industry security ship Mar.21, 2008 MEND attacked Naval ship Rivers causing explosion April 2, 2008 Two oil flow stations belonging to Rivers 11 soldiers 120,000 bpd Agip oil company located offshore reportedly killed forcados were blown off April.13, 2008 Agip vessel bombed Forcados, Delta 10 Naval officers State died and some undisclosed militants April.15,2008 Serial attacks were launched on the Warri-Benin Rivers pipelines and product marketing company of NNPC April.19,2008 MEND fighters crippled Delta/Edo 6 people died with 2 Adamakiri crude flow station children belonging to Shell April.21,2008 MEND in Operation Cyclone Adamakiri 10 killed in clashes; attacked two major pipelines in 12 foreign workers Soku-Buguma and Buguma Alakiri kidnapped belonging to Shell April.24, 2008 MEND Sabotaged a major crude Rivers 6 Foreign workers oil pipeline located at Kule kidnapped operated by Shell 248

May.2, 2008 Shell Soku/Alakiri facility Bayelsa State 5 Persons kidnapped 15,000 bpd attacked, key facility destroyed May.13, 2008 Chevron oil vessel hijacked Kule, Rivers May.26, 2008 Assault on Shell pipeline, forcing Bayelsa 8 hostages taken closure June..9-10, Clashes between security forces Delta 6 militants and 29 2008 and militants Soldiers reportedly died June.19, 2008 MEND struck Shell’s Bonga Rivers Over 100 deaths facility on deep offshore oil fuel June.20, 2008 Clashes at Rivers State Shell Delta facility and nearby Army base reported between militants and security forces July.16, 2008 Clashes between militants and Rivers/Bayelsa security forces July.24, 2008 Foreign oil workers kidnapped Rivers July.26, 2008 Foreign oil workers kidnapped Rivers July.28, 2008 Two major attack on Shell’s Rivers pipeline Aug.8, 2008 Militants attacked Ondo state oil Ilaje, Ondo State producing development commission (OSOPADEC) and 4 others Aug.12, 2008 Militants destroyed gas pipeline in Rivers Rivers state Aug.19, 2008 Oil pipeline destroyed in Delta Delta state Aug.24, 2008 Oil vessel on Bonny River Rivers hijacked Aug.30, 2008 Militants and security forces Rivers clashed Sept.13-15, Kula oil platform operated by Rivers 2008 Chevron and Alakiri flow station operated by Shell were attacked

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May.24, 2009 Militants attack on Chevron Delta State 100,000 bpd pipeline May.24, 2009 MEND attack on Chevron Delta State Makaraba Jacket 5 facility and Abiteye flow station was destroyed and set on fire as a revenge for military raids on militant camp March.7, 2009 Attack and destruction of Shell’s Delta 185,000 bpd forcados trunk line at Chanomi Creek June.21, 2009 Hurricane Piper Alpha campaign lashed out at the Shell offshore Ofirma oilfield which blew up jacket A June.19, 2009 Destruction of Agip Ogoda Nembe, Bayelsa State 33,000 bpd Manifold Brass export terminal June.20, 2009 Attack on Shell’s Afremo Offshore oil field at forcados terminal and Adamakiri June.20, 2009 Attack on Shell’s Trans Ramos Bayelsa State pipeline at Aghoro Aug.16, 2010 Attack on export of Bonny light Rivers state 100,000bpd

Source: Ajaero, C. (2009:16-18) Nigeria Lost Trillions , Newswatch , May, 4 ,

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APPENDIX 2 Summary of Revenue Allocation Reviews 1946-2001 Year Reviewer/Review Principles/Criteria Allocation Formulation/System Instrument 1946 Phillipson i.Derivation 1.Revenue allocation Board to make regional expenditure proportionate to regions ii.Even Progress contribution revenues. 1951 Hicks-Phillipson i.Derivation 1.50% import duties on tobacco according to consumption and 100% of duty on ii.Needs motor fuel. iii.National Interest 2.Capitation grant of 13 shillings per head 3.100% education and police 4.Special equalization grant 5.Uniform system of income taxation all over Nigeria 1953 Louis Chick i.Derivation 1.50% import duties on tobacco and 100% of import duties on motor fuel according ii.Fiscal Autonomy to consumption. 2. 50% of import duties to be shared to shared to the East 30% North 30% West 40% 3. 100% of income tax (excluding companies tax) according to residence 4. 100% of mining rents and routes and royalties according to extraction 5. 50% of export duties according to origin

1958 Raisman i.Derivation 1.100% of import duties and excise taxes on tobacco and 10% import duties on ii.Fiscal autonomy motors fuel to be shared according to consumption. iii.United national policy 2. 100% of export duties according to origin 3. 50% of mining rents and royalties 4. 35% of other import duties and 30% of mining rents and royalties to be paid in to the share in the distributable pool account and shared in the ratio East 31/95, North 40/95, West 24/95 and southern Cameroon’s 5/95 1964 Binn’s i.Comparable financial position The revenue allocation proposed involved: for each region A (i) Regional allocation: East 31%, North 40%, West 21%, and Midwest 8%. ii.Needs ii.Excise duty on locally produced motor spirit and diesel oil to be shared on the iii.Paramount financial proportion consumed in each region authority for federal iii.30% of import duties on certain commodities and mining royalties and rents to government be credited to the distributable pool account. (same as constitutional provision).OR B (i) Regional allocation: East 30% North 42%, West 20%, and Midwest 8%. ii. Same as A(ii) iii. 35% of import duties on certain commodities and rent to be credited to the 251

distributable pool account 1968 Dina i.derivation 1.Reduced the weight given to derivation principle ii.Basic need 2.Royalties from on-shore mining to be shared with federal government15%, states iii.Minimum National standards of origin 10%, states joint account 70%, special grant account 5%. iv.Balanced Development 3.Distributable pool account to be renamed state joint account 4.Uniform tax legislation for the country 5.Federal Government to finance all higher education. 1970 Decree No.13 i. Derivation 45% 1.It reduces the state share in national revenue. ii. Population 2. States were to get 60% instead of 100% of excise duty and 50% instead of 100% iii. Equality of states of the import duty on motor fuel. 3. It reduces the state share of mining revenue by derivation to 45% (from 50%) and made federal share of mining rents and royalties 5%

1971 Decree No.9 i. Not mentioned It gave the federal government the sole right of offshore oil rents and royalties. The reason for this is uncertain , however, the dispute over on shore oil operations forced oil companies to move offshore. 1975 Decree No.6 Derivation 20% 1.All revenues to be shared by the states to pass through the distributable pool account except the 20% of onshore mining rents and royalties due to states of origin by derivation. 2.Distributable pool account to also include 80% of mining rents and royalties, 35% of import duties, 100% of import duties on motor fuel and tobacco, 50% of excise duties and 100% of export duties and 100% of export duties on produce, hides and skins. 1977 Aboyade Horizontal allocation criteria Vertical and horizontal allocation made explicit. among states and L.G.S. 1.All federally collected revenue to be paid into one account and shared as follows: i. Equality of access to Federal government 57%, states joint account 30%, and local government 10% and development opportunities, special grants 3%. (0.25) 2.Each state to give 10 % of its revenue to its local governments ii. National minimum standard 3.Special grants account to be used for cleaning oil pollution, emergencies and for national integration (0.221) ecological purposes. iii. Absorptive capacity (0.20) iv. Independent revenue and minimum tax effort (0.18) v.fiscal efficiency (0.15)

1980 Okigbo Same Principle of horizontal 1.Federation Account to be shared with federal government 53%, states 30%, local allocation among states and governments 10% and special funds 7%. 252

L.G.S from federation account 2.The special fund to be shared for federal capital territory (2.5%), mineral in the following ratios: producing areas (2.0%) other ecology problem (1.0%). 1.Minimum responsibilities of 3.Creation of special agency for rehabilitation and development of mineral government (40%) producing areas. (The 1982 Act based on the Okigbo Report altered the above 2.Population responsibilities of percentages slightly) government (40%) 3.Social development factor primary school enrolment of which direct enrolment=11.25 Inverse enrolment=3.75 (15%) 4.Internal revenue effort (5%) Total=100%

1984 Amendment Derivation and other principles 1. It abolished the federal Allocation committee created under the 1981 Act based Decree as in the 1981 Act based on on Okigbo Act. Okigbo report. 2.States share of national revenue increase from 30.5% to 32.5% 3.2% of the 32.5% to be shared among oil producing states on the basis of derivation. 4.States to share the remaining 30.5% on the basis of the horizontal principles in 1901 Act (in Okigbo Report) 5.1.5% of federation Account for ecological problems of mineral producing areas. 1988 Danjuma i.Equality of states 40% 1.Vertical allocation to be :Federal government 47%, States 30%, L.G.A.s 15%, ii.Population 30% Special fund 8% iii.Social development 10% 2.Special fund to be shared to: Federal capital territory (1.0%), stabilization (0.5%), iv.Internal revenue effort 20% savings (2.5%), derivation (2.5%), development of oil mining areas (0.5%), general ecology (0.5%) 3.Primary education fund of federation Account and contributed by all three tiers of government. (In January 1990, the federal government approved these allocations with minor changes in % e.g. derivation share reduced to (1%)

1992 Decree 23 of 1992 Based on the statement on the 1.Increased Local government share in Federal Account from 15% to 20%. and budget revision of Revenue allocation 2.Reduced states, share from 30% to 25%. document and the legal provisions of 3.The 5% increase in L.G share to cater for primary education (Decree No.3 of Decree 23 of 1992 1991 transferred responsibility findings and management of education to L.G.S.) 4.By June 1992 states allocation reduced from 25% to 24% and mineral producing areas fund from 1.5% to 3%. Full benefits of this increment was not realized by oil communities under the dispensation because the regime of Gen Abacha for 253

instance paid the derivation proceeds in Naira instead of U.S. dollars and at the unrealistic official rate of ₦22 to $1 US dollars whereas the rate was ₦87 to $1US dollars in the autonomous foreign exchange market. 5.Expressly abolished the on shore/off shore dicthotomy in the formula for allocation of revenue from the federation account to states, local governments and communities.Also section (6) allocation of revenue, federation account, etc. (Amendment Act No. 106 of 1992) upholds this provision 1999 Constitution of This review is a direct 1.Increased the list of items on exclusive legislative list from 66 in 1979 to 68 in the Federal consequence of the resolutions 1999. Republic of of the 1994-1995 constitutional 2.On-shore/Off shore oil dichotomy became the basis for revenue allocation under Nigeria, 1999 Conference under Gen.Sani derivation formula. Abacha regime 3.Not less than 13% of proceed from natural resources to be paid to oil producing areas. Although it took effect in May 1999, payment that excluded off-shore production proceeds only commenced in March 2000. 4.The dynamics of federal/state/local govt. share of the distributable revenue from the federation account rest with the Federal Revenue and Fiscal Commission subject to legislation. Source: Adilieje, C. (2008:961-964) Discontinuites and Incongruities in Nigeria’s Fiscal Federalism, International Conference on the Nigerian State, Oil Industry and the Niger Delta , Niger Delta University. Harey Publication Company Limited, Port Harcourt

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APPENDIX 3 OGONI BILL OF RIGHTS (Excepts from the Ogoni Bill of Rights, adopted by general acclaim of the Ogoni people on August 26, 1990 at Bori, Rivers State) We, the people of Ogoni (Babbe, Gokana, Ken Khana, Nyo Khana and Tai) numbering about 500,000 being a separate and distinct ethnic nationality within the Federal Republic of Nigeria, which to draw the attention of the Government and people of Nigeria to the under mentioned facts: (i) That the Ogoni people, before the advent of British colonialism, were not conquered or colonized by any other ethnic group in present day Nigeria. (ii) That British colonization forced us into the administrative division of Opobo from 1908 to 1947. (iii) That we protested against this forced union until the Ogoni Native Authority was created in 1947 and placed under the then Rivers province. (iv) That in 1951 we were forcibly included in the Eastern Region of Nigeria where we suffered utter neglect. (v) That we protested against this neglect by voting against the party in power in the region in 1957 and against the forced union by testimony before the Willink Commission of Inquiry into the minority fears in 1958. (vi) That this protest led to the inclusion of our nationality in Rivers state in 1967, which states consist of several ethnic nationalities with differing cultures, languages and aspirations. (vii) That oil was struck and produced in commercial quantities on our land in 1958 at K. Dere (Bomu field). (viii) That oil has been mined on our land since 1958 to this day from the following oil fields: a) Bomu; b) Bodo West; c) Tai; d); Korokoro; e) Yorla; f) Lubara Creek and g) Afam by Shell Petroleum Development Company Nigeria Ltd. (ix) That in over 30 years of oil mining, the Ogoni nationality has provided the Nigerian nation with total revenue estimated at over 40 billion naira or 30 billion dollars. (x) That in return for the above contribution, the Ogoni people have received nothing. (xi) That today, the Ogoni people have: No representation whatever in all institutions of the Federal Republic of Nigeria; no pipe borne water; no job opportunities for the citizens in federal, state, public sector or private sector companies; no social or economic project of the Federal Government

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(xii) That the Ogoni languages of Gokana and Khana are underdeveloped and are about to disappear, whereas other Nigerian languages are being forced on us. (xiii) That the ethnic policies of successive Federal and State Governments are gradually pushing the Ogoni people to slavery and possible extinction. (xiv) That the Shell Petroleum Development Company of Nigeria Limited does not employ the Ogoni people at a meaningful or any level at all, in defiance of Federal Government regulations. (xv) That the search for oil has caused severe land and food shortages in Ogoni one of the most densely populated areas of Africa (average: 1500 per square mile; national average: 300 per square mile). (xvi) That neglectful environmental pollution laws and sub- standard inspection techniques of the federal authorities have led to the complete degradation of the Ogoni environment, turning homeland into an ecological disaster. (xvii) That the Ogoni people lack education, health and other social facilities. (xviii) That it is intolerable that one of the richest arms of Nigeria should wallow in abject poverty and destitution. (xix) That successive federal administration has tramped on every minority right enshrined in the Nigerian constitution to the detriment of the Ogoni and has by administrative structuring and other noxious acts transferred Ogoni wealth exclusively to other parts of the republic. (xx) That the Ogoni people wish to manage their own affairs now, therefore, while reaffirming our wish to remain a part of the federal republic of Nigeria as f follows: 1. That the Ogoni people be granted political autonomy to participate in the affairs of the Republic as a distinct and separate unit by whatever name called, provided that this autonomy guarantees the following: (a) Political control of Ogoni affairs by Ogoni people (b) The right to the control and use of a fair proportion of Ogoni economic resources for Ogoni development. (c) Adequate and direct representation as of right in all Nigerian nations’ institutions. (d) The use and the development of Ogoni languages in Ogoni territory. (e) The full development of Ogoni culture. (f) The right to religious freedom. (g) The right to protect Ogoni environment and ecology from further degradation.

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(xxi) We make the above demand in the knowledge that it does not deny any other ethnic group in the Nigerian federation of their rights and that it can only conduce to peace, justice and fair play and hence stability and progress in the Nigerian nation. (xxii) We make the above demand in the belief that as Obafemi Awolowo has written: In a true federation, each ethnic group no matter small is entitled to the same treatment as any other ethnic group, no matter how large. (xxiii) We demand these rights as equal members of the Nigerian federation who contribute and have contributed to the growth of the federation and have a right to expect full returns from that federation.

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