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1.1 Background of the Research
The importance of observing human rights in any legal system and its significance cannot be overemphasized. Notably, one of the lessons of globalization and the new international economic order is the increasing awareness that the enforcement of human rights is a cornerstone in the realization of sustainable development, nationally and internationally. To this end, looking at the concept and nature of sustainable development, and what it professes, the importance of a legal system lies not only in ensuring civil liberties but in addition creating a viable environment where economic development and social equity can be enjoyed.
Nigeria has ratified plethora of human rights treaties that seek to set globally applied standards. Some of these standards, especially in recent times are not limited to civil liberty domain rather they serve as prelude to the realization of both socio-economic, cultural and solidarity rights which make room for the realization of sustainable development . These rights in essence form the new international economic and legal order and thus emerges the concept of sustainable development which “environmental law’’ seeks to promote.
Within the context of environmental law however, are the ontological and historical dimensions. These dimensions depict a mother-child correlation or evolution theory. It is established that human rights of the second and third generations which of course, are developed from that of the first generation, all as reminiscent of natural law, are now being codified with minimum standards. These standards areraised by international law and made tangible by municipal law. Thus, emerges the consciousness that there are environmental rights, such as the right to a clean and healthy environment, the right to development, the right to participate in the developmental and approval process, the right to environmental information, the right to compensation and the right of access to justice. They are however, the corollaries of the right to life.
In addition to this development, in 2012, the United Nations Environment
Programme (UNEP) and the United Nations Office of the High Commissioner for
Human Rights (OHCHR) have strengthened their collaboration in the field of the nexus between human rights and environmental protection during the United Nations conference on sustainable development. In the same year, the United
Nations Human Rights Council as part of its special procedures appointed an Independent Expert on human rights obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment and appointed Professor Knox to this position. In line with his appointment as an Independent Expert and as a part of his obligation, in 2014, at the regional level, a consultation was made by the Independent Expert on the constitution of environmental rights at Johannesburg, South Africa. The consultation was convened by the United Nations Independent
Expert on human rights and environment and the United Nations Environment
Programme(UNEP) and the legal Resource Centre (LPC).
This studytherefore analyzes the standard of observation of environmental rights in Nigeria, and challenges of enforceability in order to develop animproved legal framework for applicability of environmental rights in Nigeria. We would seek to determine to what extent Nigerian legal system implements and enforces these natural law rights.
1.2 Statement of Problem
There has been much concern by Nigerian citizens and advocacy groups who have raised issues and cast aspersion on the environmental impasseand thereaction of people towards corporate attitude in curbing environmental hazards resulting from industrial activities.A recent report by the United Nations EnvironmentProgramme (UNEP) on the pollution of environment in the Niger-Delta area of Nigeria, as well as the serial conflicts between host communities, federal agencies and the industrial community, illustrates a lucid account of human rights problems in relation to environmental protection. This looms large in the oil and gas industry. In addition, the Report by the United States Department of States (2006) indicates that Nigeria has had a very alarming human rights violation record. The report listed amongst others, environmental related human rights violation.
The impact of environmental degradation on humans and how such impact constitutes violation of human rights has since been established. The US Department Report did also state that human rights conditions in Nigeria and the control measure are below the minimum standards of universal norms particularly that of International Bill of Rights, including the African Charter on Human and Peoples Rights. Unfortunately, the access to justice in environmental litigation in Nigeria is not applauded. Reasons being that the enforcement of environmental rights is faced with challenges of establishing the linkage between human rights and environmental protection, procedural and technical problems caused by judicial attitude among other associated problems.The problem of enforceability ofenvironmental rights posed by lack of knowledge of environmentalrights norms is indeed, a problem which this paper aspires to solve.
Several theories and jurisprudence have consideredenvironmental rights among the rights that fall within the domain of non-derogable law. It is undeniable that hazards posed by environmental degradation constitute one of the most heinous human rights violations and it is dimensional. Itcenters within the web of environmental crisis. Our crucial findings arethat environmental rightsnorms in Nigeria need a reform to function effectively and legislative and judicial actions are needed to introduce and activate such reform.
1.3 Objectives of Study
The objectives of the present study are:
• To examine the enforceability of human rights norms in environmental protection in Nigeria.
• To identify international human rights standards and the complementary municipal laws in Nigeria.
• To identify domestic mechanisms for upholding the enforcement of environmental rights
• To appraise the effectiveness of domestic mechanisms with a view to making recommendations which include enforcement mechanisms of the rights so identified.
1.4 Scope and Limitation of Study
This study on human rights standards is not a general work on human rights. It strictly focuses on the subject matter of enforceability of human rights norms in environmental protection in Nigeria. This work therefore critically researches and evaluates environmental rights. It does not deal with the rights of everybody who finds oneself embroiled in the criminal justice system. Accordingly, the subjects of “accused person’s rights” and “protection of witnesses” are not part of this work. It does not also cover the work of private initiatives and contributions of non- governmental organizations. Another area that this work does not also cover is the human rights institutions such as the National Human Rights Commission and the oversight role of the National Assembly and States Assemblies. These areas need further research.
1.5 Research Methodology
We adopted a doctrinal research methodology for this research. The study therefore placed huge reliance on secondary source materials namely: case laws, textbooks, journal articles, conference papers, internet and other legal literature were utilized.
1.6 Research Questions
1. What is the ontological nature as well as the nexus of human rights and the environment?
2. To what extent does Nigerian law guarantee the enforceability of human rights norms in environmental protection?
3. To what level of enforceability arethe rules emanating from human rights norms in environmental protection directly and practically enforceable in Nigeria?
4. To what extent can human rights norms be used to enhance the advancement of environmental human rights in Nigeria?
1.7 Literature Review
Human rights and environmental protection have been extensively discussed in existing literature, from both international and domestic legal perspectives.
DanfebboDerrihas identified that in some jurisdictions environmental matters such as oil and gas pollution are strictly regarded as human rights matters and are treated as such. But referring to Section 6(6) (c) of the 1999 Constitution of Nigeria, he pointedly emphasizes that such matters in Nigeria are merely considered as objectives of government and are non-justiciable.Danfebbo’s argument is one sided because he failed to mention the fact that the Fundamental Rights (Enforcement Procedure Rules) 2009 together with the African Charter have created access to justice in environmental litigation. In other words, he should have paid less attention to section 6 (6) (c) of the 1999 Constitution which restricts access to justice.
In Nwabuokwu’sview, environmental human rights appear to be the right word for categorizing standards and norms of human rights in this dimension. Those rights though used interchangeably as countable and uncountable terms, represent a class interest, or community concern. To say that environment has a right might be a misconceived statement. But to say that human beings have a right to a clean, safe, sound and healthy environment constitutes a correct expression of environmental human rights.Nwabuokwu’s view is narrow because his major concern was to identify the rights without addressing the issue of enforceability.
Ladan’s paper on “Access to Environmental Justice in Oil Pollution and Gas Flaring Cases as a Human Right Issue in Nigeria”has a significant and inevitable role in seeing that statutory mechanisms for the enforcement of human rights become tangible machinery of law. He noted as follows:
The strongest argument for a human right to theEnvironment focuses not environmental quality,but on Procedural rights including access to justice amongothers in environmental matters.…the main advantage of focusing on procedural rights like access toEffective justice is that it enables individuals and NGO’s to enforce
Domestic environmental laws that may help them shape domestic Environmental policy.Ladan was right in adding that the Fundamental Rights (Enforcement Procedure Rules) 2009 has brought a latest trend on the liberalization of Locus standi.However, He gave less attention to the salient provisions of the African Charter on environmental rights.
Amechi in his article noted that the Fundamental Rights( Enforcement Procedure) Rules is a welcome development in promoting access to court for victims of environmental degradation in Nigeria. He further asserted that the African Charter by virtue of domestication has force of law and forms part of existing legislation, but he added that Article 24 of the African Charter on the “right to general satisfactory environment necessary for development” is subject to chapter four of the 1999 Constitution of the Federal Republic of Nigeria .we do not agree with him because he failed to mention the fact that the African Charter has constitutional flavor.
Abddulkadir and Sambo while examining human rights and environmental protection accepted the linkage between the two concepts. They went further to posit that the 1999 Constitution of the Federal Republic of Nigeria made a remarkable achievement by providing for environmental protection but added that section 6 (6) (c) of the 1999 Constitution of the Federal Republic of Nigeria divests the said section 20 of any enforceability. Their view that the 1999 Constitution does not expressly provide for the right to clean and healthy environment is correct but they failed to realize the fact that by implication, the right to a clean environment is a corollary of the right to life provided under section 36 of the same Constitution. In other words, the right to life also connotes the right to live in a clean and safe environment; it is for our judiciary to liberally adopt same.
Ijaiya and Joseph in their article reviewed the challenges facing the enforcement of environmental rights in Nigeria to include funding, corruption, bad governance and low level constitutional provisions .In addition, they reiterated the same view as Abdulkadir above by referring to section 20 of the 1999 constitution as few provisions on environmental right to a clean environment in Nigeria, which we have highlighted that the said section has not added any value to the enforceability of environmental rights in Nigeria.Musa and Bappah on their part properly analyzed the relationship between human rights and the environment but added that an attempt made by the Nigerian Constitution under section 20 of the 1999 Constitution is faced with enforceability problem. Thus they failed to proffer enforcement solutions.
MaheshwaraSwamy, succinctly dedicated Chapter Three of his textbook on environmental Law in addressing the notion of fundamental human rights and environmental value system in a jurisprudential context. He has based his research on Indian jurisprudence and international law of human rights and the environment. Case law and theories adduced by Swamy testify to the functionality and, indeed the inexorable linkage of human rights, sustainable development and the environment. This of course, has been corroborated by the Principle 1 of the Stockholm Declaration12 and Principle 4 of the Rio Declaration.
Principle 1 of the Stockholm Declaration providesMan has the fundamental rights to freedom, equality and adequate conditions of life, in an environmentof equality 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. In this respect , policies promoting or perpetuating apartheid , racial segregation, discrimination, colonial or other forms of oppression and foreign domination stand condemned and must be eliminated’’.
Principle 4 of the Rio Declaration on its part stipulates thus: “In order to achieve sustainable development, environmental protection shall constitute an integral part of the development process and cannot be considered in isolation from it’’.
Assessing the Rio principles, Principles 4 and 25 display the inexorable affinity of human rights and the environment as fundamental constituents of sustainable development. Principle 25 particularly states that ‘Peace, development and environmental protection are interdependent and indivisible. This isaccurate inbuttressing the notion that indivisibility of human rights is to be precise, a universal sanctity that touches all facets of human life, including the economic and social aspects of human existence. As David Kinsley puts it, “human rights must embrace the power of the global economy, while insisting that it’s power is harnessed so as to promote the goals of human rights”. Kinsley’s view stresses that despite the significance of environmental resources and economic development, the global policy view is that concern for the overall goals of human rights must be a paramount consideration.Salaza-Duran while assessing the concept of the ‘right to a healthy environment’ is emphatic that recognizing environment as human rights will change the adjudication of environmental cases, mechanisms and remedies available for environmental rights claims. He explains how human rights approach provides a more resourceful means of achieving compensation for victims of environmental law violations.MalgosiaFizmaurice and Jill Marshall on their part have presented interesting arguments juxtaposing the idea of the right to a clean environment. While examining the jurisprudence of the European Court of Human Rights to demonstrate how the court has balanced rights and interest, they adduce a number of interesting ideologies such as thesignificance of the right to a clean environment, the difficulty accompanying such legal notion and what could be done to make it tangible.
Richard Hiskes argues that in order to sustain formidable human rights standards, the right to clean air, water, and soil should be seen as environmental human rights of both the present and future generations. He presents novel conceptualizations that are central to human rights and environmental justice. Suffice it to add that these novel issues are emerging human rights of the third and forth generations. Klaus Toepfer, Executive Director of the United Nations Environment Programme, reflected this approach in his statement in 2001. He submitted that human rights cannot be secured in a degraded or polluted environment. That the fundamental right to life is threatened by soil degradation and deforestation and by exposures to toxic chemicals, hazardous wastes and contaminated drinking water. He argued that environmental conditions clearly help in determining the extent to which people enjoytheir basic right to life, health, adequate food and housing, and traditional livelihood and culture. He emphasized that it was timeto recognize that those who pollute or destroy the natural environment are not just committing a crime against nature, but are violating human rights as well.
Dinah Shelton, while lecturing on the approach-categorization of human rights, posits that systemic standards of human rights or the right-based systems have since developed. Commenting on the right-based approach, she posits that the secondrights-based approach, most common in international environmental agreements since 1992, is also instrumentalist, but instead of viewing environmental protection as an essential element of human rights, Shelton views certain human rights as essential elements to achieving environmental protection, which has the principal aim of protecting human health. According to her, this approach is wellillustrated by the Rio Declaration on Environment and Development, adopted at the conclusion of the 1992 Conference of Rio de Janeiro on Environment and Development. Shelton believes that this formulates a link between human rights and environmental protection largely in procedural terms. Thus, Shelton makes reference to Principle 10 of Rio Declaration above, that access to information, public participation and access to effective judicial and administrative proceedings, including redress and remedy, should be guaranteed because environmental issues are best handled with the participation of all concerned citizens, at the relevant level. She proves this further by showing that these procedural rights contained in all human rights instruments, are adopted in environmental texts in order to have better environmental decision-making and enforcement. Shelton affirms that the third and most recent approach views the link as indivisible and inseparable and thus posits the right to a safe and healthy environment as an independent substantive human right. She further states that examples of these are found mainly in international law and in regional human rights and environmental treaties.
A.E. Anthony advanced strong support for tangibility of collective human rights in
Africa. He canvassed for dismissal of any thought that certain categories of human rights were still phantom, and not practically enforceable. Anthony’s analysis of the culture and practice of the African Human Rights Courts with its abundant challenges do not in effect, remove the uniqueness of human rights law, but rather, the system is amplifying its potency as the law continues to develop.
Odinkalu has arguably submitted that “the mechanism of the African Charter is not the altogether hopeless beast caricatured by the literature,” and takes a position that the real problem lies in addressing the effectiveness of the system, and preaching for a reform process or forum that is not so state-centred.This is of course borne out by the African Human Rights Commission’s case work which has reached an advanced stage. In the SERAC Decision, the Commission holds as follows:
The uniqueness of the African situation and the special qualities of the AfricanCharter impose upon the African Commission an important task. International law andhuman rights must be responsive to African circumstances. Clearly, collective rights, environmental rights, and economic and social rights are essential elements of humanrights in Africa. The African Commission will apply any of the diverse rights containedin the African Charter. It welcomes this opportunity to make clear that there is no rightin the African Charter that cannot be made effective.
Analysing the standards of human rights, Alan Boyle has argued that ‘environmental rights can be viewed from at least three perspectives, looking at the legal stratum.
First, existing civil and political rights can be used to give individuals, groups and NGOs access to environmental information, judicial remedies and political processes. Legal rights exist to empower them for facilitating participation in environmental decision-making and compelling governments to meet minimum standards of protection for life, private life and property from environmental harm. He places the second perspective as legal elements that are deployed to treat a decent, healthy or sound environment as an economic or social right, comparable to those whose progressive attainment is promoted by the 1966 UN Covenant on Economic Social and Cultural Rights. According to him, the third option is the treatment of environmental quality as a collective or solidarity right, giving communities (‘peoples’) a right to determine how their environment and natural resources should be protected and managed’.
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