OIL SPILLAGE IN THE NIGERIAN NIGER DELTA: A COMPLEX INSTANCE

OF GROSS ENVIRONMENTAL INJUSTICE

OKWEZUZU, GAIUS. E. ESQ

ABSTRACT

This article attempts a portrayal of the extremely atrociousand monstrous environmental tragedy that has bedeviled theNigerian Niger Delta as a result of oil pollution. It alsocarries out an exploration of different legal mechanisms,namely, the traditional common law approach employed in theNigerian courts, the Alien Tort Statute in the United States,and the recent open-door for redress in the British High Courtwhich various individuals, groups, and communities haveemployed to secure environmental protection in the Niger Deltawith a view to ascertaining their effectiveness or otherwisein providing the desired environmental protection. Itobserves that the traditional common law torts of nuisance,negligence, trespass, and strict liability in the protectionof the environment are largely ineffective as theirapplication is fraught with inherent and diverse problemswhile the decision in Kiobel v. Royal Dutch Petroleum appears to haverendered ineffective the Alien Tort Statute in the UnitedStates. However, with the recent Ogoni award granted by aHigh Court in London, there appears to be an open-door forredress in the British High Court. Finally, bearing in mindthe magnitude of oil spillage and the deadly effects, it issubmitted that environmental degradation in the Niger Deltaamounts to genocide in disguise and therefore calls for UNunilateral intervention. In this regard, it recommends thatUNEP should be mandated to carry out an independent assessmentof the Niger Delta and proffer measures that would be bindingon culpable parties.

I. INTRODUCTION

Senior Lecturer, Faculty of Law, Benson Idahosa University, Benin City,Nigeria. Email: gaizuzu@yahoo.com

1

Nigeria, located between Latitude 4o and 14o N and

Longitude 2o 45 and 14o 30E, is a maritime state with a

coastline of approximately 853 km.1 Its total land and water

area is 923,768 sq km, with the area of the land being 910,768

sq km while that of water is 13,000 sq km.2 It is the most

populous country in Africa and also one of the most endowed as

far as natural resources are concerned. But ironically, it is

among the poorest nations in the world and, as it is with many

oil-rich developing countries, oil reserves have proved a

mixed blessing for Nigeria.3 It is pathetic to note that

Nigeria is infested with myriads of dangerous, deadly but

avoidable environmental problems, sordid instances of

environmental injustice as well as calculated deprivation and

oppression backed by high-level international conspiracy

1

? C.O. Dublin-Green, L.F. Awosika, and R. Folorunsho, Climate VariabilityResearch Activities in Nigeria, Nigerian Institute for Oceanography andMarine Research, Victoria Island, Lagos, Nigeria, cited in Oil SpillDisaster Monitoring Along Nigerian Coastline (O.A. Egberongbe, P.C. Nwilo,and T.O. Badejo), Retrieved from http://www.fig.net/pub/accra/papers/ts16/ts16_06_egberongbe_etal.pdf (Accessed on 16 October, 2011)2 CIA THE WORLD FACTBOOK (2005), cited in Egberongbe et al, Id.3 U.S. NON-GOVERNMENTAL DELEGATION TRIP REPORT, OIL FOR NOTHING: MULTINATIONALCORPORATIONS, ENVIRONMENTAL DESTRUCTION, DEATH AND IMPUNITY IN THE NIGER DELTA (1999),at 4. Retrieved from http://www.essentialaction.org/shell/report/.(Accessed on 16 October, 2011). The U.S. Non-Governmental Delegation TripReport was made by a group of 9 U.S. activists, academics and journalistsfrom around the United States who spent 10 days in Nigeria’s Niger Deltaregion, and 4 days in Lagos (620 September, 1999). The delegation washosted by the Lagos and Port Harcourt offices of Environmental RightsAction/Friends of the Earth-Nigeria.

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especially in the Niger Delta4 region of the country where the

major oil reserves are located. With the Niger Delta region

bedeviled with highly devastating environmental pollution,

different individuals, groups, and communities have attempted

to employ various approaches to make legal claims in their bid

to seek justice with regard to environmental protection as a

result of the adverse effects suffered due to the operations

of oil companies.

The article attempts a portrayal of the atrocious and

monstrous environmental tragedy that oil pollution has brought

upon the Niger Delta as well as an exploration of the

traditional common law approach employed in the Nigerian

courts, the Alien Tort Statute in the United States, and

recently the open-door for redress in the British High Court

as legal mechanisms by which various individuals, groups, and

4 The Niger Delta consists of 70,000 km² of wetlands developed primarily bydeposition of sediments. Home to 20 million people and 40 different ethnicgroups, this floodplain makes up 7.5% of Nigeria's total land mass. It isthe largest wetland and maintains the third-largest drainage area inAfrica. The environment Delta can be divided into four ecological zones:coastal barrier islands, mangrove swamp forests, freshwater swamps, andlowland rainforests. This incredibly well-endowed ecosystem contains oneof the highest concentrations of biodiversity on the planet. It alsosupports the abundant flora and fauna, arable terrain that can sustain awide variety of crops, economic trees, and more species of freshwater fishthan any ecosystem in West Africa. Wikipedia, Petroleum industry inNigeria, Wikipedia, the Free Encyclopedia.. Retrieved fromhttp://en.wikipedia.org/wiki/Petroleum_in_Nigeria, (Accessed on 16 October,2011)

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communities have sought environmental protection in the Niger

Delta with a view to ascertaining their effectiveness or

otherwise in providing the desired environmental protection.

II. GRIM IRONY: OIL RICH BUT BACKWARD NIGER DELTA AND

THE MAJOR PLAYERS IN THE OIL INDUSTRY

It is pertinent to state that the major players in the

oil industry operating in the Niger Delta are multinational

corporations with their international headquarters located in

powerful Western countries, a number of which are World Powers

that are highly influential in global politics and economy

such as Great Britain, United States, and France. It is said

that:

The main multinational oil companies operating inthe region are Shell (accounting for more than 40percent of the volume of production), Mobil andChevron, in that order. Other companies withsignificant presence in the Delta are the Italiancompany Agip, France’s Elf-Aquitaine (commonlyknown as Elf), and Texaco. All of these companiesoperate on the basis of a joint venture with theNigerian government.5

5 See U.S. NON-GOVERNMENTAL DELEGATION TRIP REPORT, supra note 3, at 23. The U.S.Non-Governmental Delegation Trip Report further pointed out as follows:Everywhere we visited we witnessed the destruction of the localenvironment, and the oppression of communities affected by what canaccurately be described as an outlaw oil industry. Under the somber shadowof this industry of wealth, millions of Niger Delta residents try to

4

According to Egberongbe et al., Royal Dutch Shell discovered

crude oil at Oloibiri, a village in the Niger Delta, in 1956,

and commercial production commenced in 1958.6 Currently, there

are 606 oil fields in the Niger Delta: 360 of them are on-

shore while 246 are offshore. Today, Nigeria is the largest

oil producer in Africa and the eleventh largest in the world

and its production output was on an average of 2.5 million

barrels per day (bbl/d) in 2004 with its proven oil reserves

estimated at 35.2 billion barrels.7 Nearly one-third of oil

produced in Nigeria is shipped directly to the US while major

survive. The tragedy of so much oil being extracted from the same landswhere abject poverty has become institutionalized is unbearable. Over thelast 40 years, billions of dollars in profits are earned each year, asmillions of barrels of oil are extracted. Meanwhile, high unemployment,failing crops, declining wild fisheries, poisoned waters, dying forests andvanishing wildlife are draining the very life blood of the region. Eventhe rainwater is acidic and poisoned. What else can the oil companies takefrom the people? And, what should they be required to give back? … It is asad reality that Nigeria’s oil helps fuel the industrialized world in itsmad rush for “progress,” while the producing nation is left so obviouslyfar behind.6 Egberongbe et al., supra note 1.7 Id. See also Roth Anja, Environmental Destruction and Human Rights in the Niger Delta,FREEDOM FROM FEAR MAGAZINE, 19 October, 2011. Retrieved fromhttp://www.freedomfromfearmagazine.org /index.php?option=com_content&view=article&id=229:environmental-destruction-and-human-rights-in-the-niger-delta&catid=49:issue-6&Itemid=186 (Accessed on 20th

October, 2011). Roth has opined that “[w]ith the revenues of oil and gasexportation representing 95-99 percent of Nigeria’s export revenues, onewould expect the Niger Delta region to be a prosperous place.” However,the World Bank has revealed that “only one percent of those revenuesactually reach the population, with the sad reason for this misdistributionbeing corruption.” See Library of Congress – Federal Research Division:Country Profile Nigeria, July 2008, at 10, available at<ttp://lcweb2.loc.gov/frd/cs/ profiles/Nigeria.pdf>, cited in Anja, Id.

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part of the balance is exported to other nations, mostly in

Europe, and very little is left in Nigeria for refinement and

consumption.8 During the last four decades, hundreds of

billions worth of crude oil have been extracted from the Niger

Delta wetlands, earning huge profits for a privileged few,

while virtually robbing the affected communities of both life

and livelihood.9 Roth has posited that with regard to “the

consequences of oil extractions on the environment of the

Niger Delta, several human rights are being violated…” and

these include the right to health and a healthy environment

which is enshrined in the International Covenant of Social, Economic and

Cultural Rights (Art. 12), in the African Charter on Human and Peoples’

Rights (Art. 24), and the Universal Declaration of Human Rights (Art. 25).10

Egberongbe et al. have asserted that “[s]ince the

discovery of oil in Nigeria in 1956, the country has been

suffering the negative environmental consequences of oil

development.”11 In this regard, it is noteworthy that oil

8 U.S. NON-GOVERNMENTAL DELEGATION TRIP REPORT, supra note 3. It has beenasserted that “the Niger delta supplies 40% of all the crude the UnitedStates imports and is the world capital of oil pollution.” See John Vidal,Nigeria's agony dwarfs the Gulf oil spill. The US and Europe ignore it Retrieved from<http://www.guardian.co.uk/world /2010/may/30/oil-spills-nigeria-niger-delta-shell>, (Accessed on 15 October, 2011)9 Id.10 Anja, supra note 7.11 Egberongbe et al., supra note 1. Also, on the damage to the environment, see Omorogbe Yinka, Regulation of Oil Industry in Nigeria, in NEW FRONTIERS IN LAW

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spills constitute a major cause of environmental degradation

in the Niger Delta.

A. Oil Spills in the Niger Delta and the Devastating Effects

Alli,12 in an address, pointed out as follows:

As a result of oil losses, vast tracks ofagricultural land have been wasted thus becomingunproductive, surface water courses are invariablycontaminated and polluted rendering the waterundrinkable and the aquatic life is destroyed, theresult is great hardship to the inhabitants whobecome impoverished and deprived. These citizensare therefore compelled to emigrate to other townsand villages in search of decent life.13

Also, a 1983 report issued by the NNPC is corroborative of the

harmful effects of oil spills:

We witnessed the slow poisoning of the waters ofthis country and the destruction of vegetation andagricultural land by oil spills which occur duringpetroleum operations. But since the inception ofthe oil industry in Nigeria, more than twenty-fiveyears ago, there has been no concern and effective

(E.C.J. Azinge ed., 1993) at 145. 12 The late Professor Ambrose Alli was a former Governor in the defunct Bendel State of Nigeria.13 A.F. Alli, The Petroleum Industry and the Nigerian EnvironmentProceedings (1981), at 20, cited in A.M. Akatugba, Legal Framework forEnvironment and Sustainable Agricultural Production, 2 DLR (2006), at 390 (TheCeremonial Opening Address). See also Amnesty International report, THENEWS, 19 October, 2009. Amnesty International has captured the deplorablesituation as follows:

In the Niger Delta hundreds of thousands, if not millions ofpeople, depend on fishing and farming for their food andlivelihoods. Oil spills, waste dumping, gas flaring,dredging of rivers, seismic operations; all these activitiesof the oil industry have seriously damaged agricultural landsand waterways of the Niger Delta, thereby damaging people’sability to catch fish, people’s ability to grow food and havea livelihood.

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effort on the part of the government, let alone theoil operators, to control environmental problemsassociated with the industry.14

A U.S. Non-Governmental Delegation Trip Report has it that

though oil companies have often claimed that their

operations are performed according to the highest

environmental standards,15 it is incontrovertible that the said14 Quoted in Greenpeace International’s Shell Shocked, at 1, cited inWikipedia, ENVIRONMENTAL ISSUES IN THE NIGER DELTA. Retrieved from<http://en.wikipedia.org/wiki/Environmental_issues_ in_Nigeria>,. (Accessedon 16 October, 2011).15 HUMAN RIGHTS WATCH, THE PRICE OF OIL. CORPORATE RESPONSIBILITY AND HUMAN RIGHTSVIOLATIONS IN NIGERIA’S OIL-PRODUCING COMMUNITIES (1999), at 56, cited in U.S. NON-GOVERNMENTAL DELEGATION TRIP REPORT Frynas has contradicted this claim bypointing out, for instance, that SPDC (the highest oil producer in Nigeria)reduced its operating costs by implementing environmental standards at itsNigerian oil facilities that fell far short of those implemented at itsextraction installations in Western states. He further asserts that duringthe period of military rule in Nigeria, the SPDC had only invested anestimated 0.000007 per cent of its oil revenue from Ogoniland in social orenvironmental projects in the area itself. J.G. Frynas, Political Instability andBusiness: Focus on Shell in Nigeria, 19 THIRD WORLD QUARTERLY (1998), at 463, cited inHancock Jan, Universal Human Rights Claims by the Ogoni People of Nigeriaand the Paradox of Cultural Relativism (Conference paper presented at theInternational Studies Association Annual Conference, San Diego, 25 March,2006) at 5. Retrieved from http://web.ebscohost.com/ehost/ pdfviewer/pdfviewer?vid=11&hid=107&sid=b0ea37b5-ba58-40f2-947c-dd7a3772a219% 40sessionmgr10 (Accessed on 18 October, 2011). The US Delegation Trip Report alsopoints out as follows: While the story told to consumers of Nigerian crudein the US and the European Union … is that oil companies are a positiveforce in Nigeria, providing much needed economic development resources, thereality that confronted our delegation was quite the opposite. Ourdelegates observed almost every large multinational oil company operatingin the Niger Delta employing inadequate environmental standards, publichealth standards, human rights standards, and relations with affectedcommunities. These corporations’ acts of charity and development are slapsin the face of those they claim to be helping. Far from being a positiveforce, these oil companies act as a destabilizing force. See U.S. NON-GOVERNMENTAL DELEGATION TRIP REPORT, supra note 3, at 23. It is worthy to also state that as a result of the grave situation ofenvironmental degradation, the Niger Delta, according to Shah, has been theattention of environmentalists, human rights activists and fair tradeadvocates around the world. Shah Anup, Nigeria and Oil, GLOBAL ISSUES, 10th

June, 2010, Retrieved from8

oil companies have had a severe impact on the environment, and

on agricultural and fish production throughout the Niger Delta

region. There are reports from many communities that they

rarely receive any or sufficient compensation for land taken

by oil companies, or rendered useless by oil spills, acid

rain, and other forms of pollution.16 However, according to

the U.S. Non-Governmental Delegation Trip Report, protests

made by the local communities against environmental

degradation and loss of land rights have often met with

violent repression by the various police and security bodies

with the complicity of the oil companies.17 The Executive

Summary of the U.S. Non-Governmental Delegation Trip Report

asserts:

There is a long and terrible record ofenvironmental destruction and human rightsviolations in the oil-producing regions of Nigeria.The gross level of environmental degradation causedby oil exploration and extraction in the NigerDelta has gone unchecked for the past 30 years.Evidence shows that the oil companies operating inNigeria have not only disregarded theirresponsibility towards the environment but haveacted in complicity with the military’s repression

<http://www.globalissues.org/article/86/nigeria-and-oil >, (Accessed on 16th

October, 2011)16 Interviews with residents of Eket, Egi, Port Harcourt, Edagberi, Akala, and other communities, Sept. 1999. The interviews were conducted by the U.S. Non-Governmental Delegation. See U.S. NON-GOVERNMENTAL DELEGATION TRIP REPORT, supra note 3. 17 U.S. NON-GOVERNMENTAL DELEGATION TRIP REPORT, Id.

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of Nigerian citizens. The profit-driven collusionbetween multinational oil companies and the pastand present Nigerian governments has cost manylives and continues to threaten the stability ofthe region.18

The report also dwells on the immediate and long term effects

of oil pollution as well as social and economic impacts of

corporate practices on the communities of oil producing

areas.19

One very grim effect of oil spillage is that life

expectancy in the rural communities of the Niger Delta, half

of which have no access to clean water, has fallen to little

more than 40 years over the past two generations.20 Moreover,

oil spillage has significantly impacted the ecosystem into

18 Id., at 3. Shah has also pointed out that a series of repressive andcorrupt governments in Nigeria have been supported and maintained bywestern governments and oil companies that are keen on benefiting from theoil that can be exploited and while people and transnational oil companies‘have been fighting over this “dark nectar” in the delta region, immensepoverty and environmental destruction have resulted.’ Shah Anup, supra note15.19 U.S. NON-GOVERNMENTAL DELEGATION TRIP REPORT, supra note 3, at 5-11. Keyfindings of the report include:

1. Oil corporations in the Niger Delta seriously threaten thelivelihood of neighboring local communities. Due to the manyforms of oil-generated environmental pollution evidentthroughout the region, farming and fishing have becomeimpossible or extremely difficult in oil-affected areas, andeven drinking water has become scarce. Malnourishment anddisease appear common.2. The presence of multinational oil companies has hadadditional adverse effects on the local economy and society,including loss of property, price inflation, prostitution,and irresponsible fathering by expatriate oil workers.

20 Vidal, supra note 8.

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which it is released. Enormous tracts of the mangrove

forests, which are especially vulnerable to oil (mainly

because it is stored in the soil and re-released annually

during inundations), have been wiped out. It has been

estimated that 5 to 10% of Nigerian mangrove ecosystems have

been eradicated either by settlement or oil. Also, the

rainforest which hitherto occupied some 7,400 km² of land has

been destroyed.21 In populated places, spills frequently

spread out over a wide area, bringing about the destruction of

crops and aquacultures through contamination of the

groundwater and soils. Dissolved oxygen is consumed by

bacteria which feed on the spilled hydrocarbons and this also

contributes to the death of fish. In agrarian communities, a

year's supply of food can often be destroyed at once. The

environment is growing increasingly uninhabitable as a result

of the careless nature of oil operations in the Delta.22

People in the communities affected complain of health problems

such as breathing problems and skin lesions while many have

21 Manby Bronwen, The Price of Oil, Human Rights Watch (1999), cited insupra note 14. Also, O’Neill has asserted that “oil fouls everything insouthern Nigeria. It spills from the pipelines, poisoning soil and water.”T. O’Neill, Curse of the Black Gold: Hope and betrayal on the Niger Delta,Retrieved from <http://ngm.nationalgeographic.com/2007/02/nigerian-oil/oneill-text>, (Accessed on 15 October, 2011).22 Environmental issues in the Niger Delta, supra note 14.

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lost basic human rights such as health, access to food, clean

water, and an ability to work.23

Oil spills, according to Nwilo and Badejo, occur as a

result of several factors such as corrosion of pipelines and

tankers (accounting for 50% of all spills), sabotage (28%),

and oil production operations (21%), while inadequate or non-

functional production equipment accounts for 1% of the spills.

The cause of the highest percentage of oil spill (corrosion of

pipes and tanks) is the rupturing or leaking of production

infrastructures that are described as "very old and lack

regular inspection and maintenance".24

B. Magnitude of Oil Spillage and legal Measures to Check

It

On the magnitude of oil spillage, the exact amount of oil

spilled appears to be unknown. It has been pointed out that

it is impossible to know how much oil is spilled in the Niger

delta each year because the companies and the government keep

23 J. Baird, Oil's Shame in Africa, NEWSWEEK, . July 26, 2010, at 27.; NationalRadio Project, Standing Up To Big Oil Making Contact, December 14, 2010,cited in “Environmental issues in the Niger Delta,” Supra note 14.24 P.C. Nwilo & O.T. Badejo, Impacts of Oil spills along the Nigeriancoast (2001), cited in “Environmental issues in the Niger Delta, supra note14.

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that a secret.25 Bonny Otavie26 has said that "[we] are faced

with incessant oil spills from rusty pipes, some of which are

40 years old."27 According to a Guardian report,

The scale of the pollution is mind-boggling. Thegovernment's National Oil Spill Detection andResponse Agency (NOSDRA) says that between 1976 and1996 alone, more than 2.4m barrels contaminated theenvironment. "Oil spills and the dumping of oilinto waterways has been extensive, often poisoningdrinking water and destroying vegetation. Theseincidents have become common due to the lack oflaws and enforcement measures within the existingpolitical regime."28

The Nigerian federal government figures have it that there

were more than 7,000 oil spills between 1970 and 2000 with

2,000 official major sites of spillages, many dating back to

decades while thousands of smaller ones are awaiting clearing

up.29 Furthermore, since 2006, Shell has been dealing with an

average of 169 oil spills per year in the Niger Delta. This

figure is a bit lower than the 175 average for the 2005-2009

period. In 2010, the company recorded 32 operational spills

in the Niger Delta, down from 37 in 2009.30 Moreover, Nnimmo25 Vidal, supra note 8. 26 A member of Bayelsa State House of Assembly.27 Vidal, supra note 8. 28 Id.29 Vidal, supra note 8.30 Huhuadmin. “British Court orders Shell to pay $410 million damages overOil Spills.” Retrieved from <http://huhuonline.com/index.php?option=com_content&view=article&id=3332:british-court-orders-shell-to-pay-410-million-damages-over-oil-spills&catid=103:more-news>, (Accessed on 20th

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Bassey31 has pointed out that "[t]here are more than 300

spills, major and minor, a year." He also said that oil

spillage takes place “all the year round…” asserting that in

“Nigeria, both companies and the government have come to treat

an extraordinary level of oil spills as the norm."32

It has been further revealed that “the Niger delta… has

seen more than 7,000 oil spills in the low lying swamps and

farmland since 1989” and according to Amnesty International,

“more than 13m barrels of oil have been spilt in the delta,

twice as much as by BP in last year’s Gulf of Mexico spill”,

since the discovery of oil in the Niger Delta by Shell in

1956.33 According to a Guardian report:

In fact, more oil is spilled from the delta'snetwork of terminals, pipes, pumping stations andoil platforms every year than has been lost in theGulf of Mexico, the site of a major ecologicalcatastrophe caused by oil that has poured from aleak triggered by the explosion that wrecked BP’sDeepwater Horizon rig….34

October, 2011).31 Chair of Friends of the Earth International and Director of EnvironmentRights Action in Nigeria.32 Vidal, supra note 8. 33 John Vidal, Shell accepts liability for two oil spills in Nigeria,Retrieved from <http://www.guardian.co.uk/environment/2011/aug/03/shell-liability-oil-spills-nigeria>, (Accessed on 15th October, 2011).34 Vidal, supra note 8. The report has pointed out that “That disaster,which claimed the lives of 11 rig workers, has made headlines round theworld. By contrast, little information has emerged about the damageinflicted on the Niger delta.” Moreover, the report also reveals that twomajor independent investigations over the past four years suggest that as

14

People in the Niger Delta can hardly believe the contrast with

the steps taken by BP, a British multinational oil and gas

company, and the US government in stopping the Gulf oil leak

and protecting the Louisiana shoreline from pollution.35 A

spokesman for the Stakeholder Democracy Network in Lagos

working to empower communities affected by the operations of

oil corporations has said: "The response to the spill in the

United States should serve as a stiff reminder as to how far

spill management in Nigeria has drifted from standards across

the world."36

Shell argues that most of its oil spills are as a result

of theft, vandalism or sabotage by militant groups, but this

is widely disputed and independent assessment of what may have

caused spillages is lacking.37 Amnesty International and

Friends of the Earth however have filed an official complaint

much is spilled at sea, in the swamps and on land every year as has beenlost in the Gulf of Mexico so far. Another report, compiled by World WideFund for Nature (WWF) UK, the World Conservation Union and representativesfrom the Nigerian federal government and the Nigerian ConservationFoundation, calculated in 2006 that up to 1.5m tons of oil – 50 times thepollution unleashed in the Exxon Valdez tanker disaster in Alaska – hasbeen spilled in the delta over the past fifty years. Last year AmnestyInternational calculated that the equivalent of at least 9m barrels of oilwas spilled and accused the oil companies of a human rights outrage.35 Id.36 Id.37 Amnesty International, Nigeria: UN urges Shell to overhaul oil clean-upprocess in Niger Delta, Retrieved from <http://www.amnesty.org/en/news-and-updates/nigeria-un-urges-shell-overhaul-oil-clean-process -niger-delta-2011-08-05>, (Accessed on 20th October, 2011).

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against Shell over misleading statements the company has made

about sabotage.38 Moreover, a UN report has exposed the

serious failure of the Nigerian government to regulate and

control companies like Shell, noting that Nigeria’s regulators

are weak and that the national oil spill investigation agency

often completely relies on the oil companies to do its work.

Under Nigerian regulations, oil companies must clean up all

oil spills notwithstanding the cause of the spill. However,

these regulations are not enforced. Therefore, many areas of

the Niger Delta are still polluted because companies fail to

clean up spilled oil and rehabilitate the soil and water.39

C. Cases on Oil Pollution and Their Outcomes

Different individuals, groups, and communities have

attempted to make legal claims as a result of the adverse

effects suffered due to the operations of oil companies.

These claims have been brought variously under the traditional

common law approach mostly in Nigerian courts, the Alien Tort

Statute in the US, and recently in the British High Court.

(i) Common Law Torts Approach to Environmental

Protection

38 Id.39 Id.

16

There are a plethora of cases arising from operations of

oil companies and most of them are brought applying the

traditional common law torts of nuisance, negligence,

trespass40 or strict liability. It has been asserted that

“[h]undreds of minor court cases are brought each year in

Nigeria over oil spills and pollution.”41 Yet, only few cases

against the oil companies such as Umudje v. Shell B. P., Ikpede v. Shell

BP Petroleum Dev. Company Ltd,42 and Onajoke v. Seismograph Service Ltd43

have succeeded with their claims with very discouraging

compensations often awarded as in SPDC Nig. Ltd V. Ambah.44 On the

other hand, several other cases for claims against oil

companies have failed, and a good number of them thrown out on

grounds of legal technicalities. Examples of such claims that

met with failure are Atubin and Ors v. Shell BP,45 Amos and Ors v. Shell BP

Petroleum Dev. Company Nig. Ltd,46 Seismograph Services Ltd v. Onokpasa,47

40 It appears that in oil pollution cases in Nigeria, this tort is yet to bedirectly pleaded. See J.F. Fekumo, Civil Liability for Damages Caused by Oil Pollution,in ENVIRONMENTAL LAWS IN NIGERIA (J. Omotola, ed.,), at 256.41 Adam Vaughan, Oil in Nigeria: a history of spills, fines and fights forrights, Retrieved from<http://www.guardian.co.uk/environment/2011/aug/04/oil-nigeria-spills-fines-fights?intcmp=239>, (Accessed on 15th October, 2011).42 (1973) All NLR 61. 43 Unreported Suit No. SHC/28/67, Jan. 29, 1971, Sapele High Court.44 (1999) 3 NWLR (Pt 593) 1 SC.45 Unreported Suit No. UCH 48/73, Nov. 12, 1974, Ughelli High Court.46 (1977) 6 SC 109.47 (1972) 4 SC 123.

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Chidinma v. Ors V. Shell BP,48 Oronto Douglas v. SPDC,49 Seismograph Services Ltd

v. Ogbeni.50

Nnimmo Bassey has alleged that "BP has been blocking

progressive legislation, both in the US and here. In Nigeria,

they have been living above the law….” He therefore suggests

that the company “must be taken to the International Court of

Justice."51 Moreover, Esavwede has expressed the opinion that

the impact of applying the traditional common law torts of

nuisance, negligence, trespass, and strict liability in the

protection of the environment has not been so effective as

their application in environmental protection is fraught with

inherent and different problems.52

(ii) Claims Under the Alien Tort Statute

A number of cases have been decided under the Alien Tort

Statute53 in the United States. First, Wiwa v. Royal Dutch Petroleum,

48 (1974) 2 RSLR 1.49 Unreported Suit No. FHC/L/CS/573/93.50 (1976) NMLR 290.51 Vidal, supra note 8.52 J.P. Esavwede, A Critical Appraisal of the Impact of Common Law Torts on Environmental Protection in the Niger Delta, 2 DLR (2006), at 343.53 The Alien Tort Statute (ATS) 28 U. S C. § 1350, also called the Alien Tort ClaimsAct (ATCA)) is a section of the US Code that reads: "The district courtsshall have original jurisdiction of any civil action by an alien for a tortonly, committed in violation of the law of nations or a treaty of theUnited States." This ATS is significant in allowing US courts to hearhuman rights cases brought by foreign citizens for conduct committedoutside the United States. The ATS was part of the Judiciary Act of 1789,Ch. 20, § 9, 1 Stat. 73 (1789). Wikipedia, the Free Encyclopedia. “AlienTort Statute.” Retrieved from <http://en.wikipedia.org

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Wiwa v. Anderson, and Wiwa v. Shell Petroleum Development Company54 were

three lawsuits filed by the Center for Constitutional Rights

(CCR) and co-counsel from Earth Right International on behalf

of the relatives of murdered activists who were fighting for

human rights and environmental justice in Nigeria. The lawsuits

were brought against the Royal Dutch Petroleum Company and

Shell Transport and Trading Company (Royal Dutch/Shell); the

head of its Nigerian operation, Brian Anderson; and the

Nigerian subsidiary itself, Shell Petroleum Development Company

(SPDC). The defendants were charged with complicity in human

rights abuses against the Ogoni people in Nigeria, including

the summary execution of the “Ogoni Nine”, crimes against

humanity, torture, inhumane treatment, arbitrary arrest,

wrongful death, assault and battery, and infliction of

emotional distress. The cases were brought under the Alien

Tort Claims Act (ATCA) and the Torture Victim Protection Act

(TVPA). The case against the Royal Dutch Shell also alleged

/wiki/Alien_Tort_Statute>, (Accessed on December 7, 2010). Moreover,scholars have construed that the Act was intended to give assurance toforeign governments that the US would act to prevent and provide remediesfor breaches of customary international law, especially breaches concerningdiplomats and merchants. See G.C. HUFBAUER & N.K. MITROKOSTAS, AWAKENINGMONSTER: THE ALIEN TORT STATUTE OF 1789 (2003), at 3, cited in Wikipedia, theFree Encyclopedia, Alien Tort Statute, id.54 See Ken Wiwa et al. v. Shell Petroleum Development Company of Nigeria Ltd., Case No. 96, Civ. 8386 (KMW)(HBP)(S.D.N.Y).

19

that the corporation was in violation of the Racketeer

Influenced and Corrupt Organizations (RICO) Act.55 On June 8,

2009, on the eve of trial, the parties agreed to a settlement

of all the three lawsuits. The settlement with terms that are

public, provided a total of $15.5 million to compensate the ten

plaintiffs, establish a trust called The Kiisi Trust56 for the

benefit of the Ogoni people which will be governed by

independent trustees, and cover some of the legal costs and

fees associated with the case.57

On the other hand, it is noteworthy that in a similar

case, Bowoto v. Chevron Corporation,58 the defendants were charged

with gross violations of human rights including extrajudicial

killing; crimes against humanity; and cruel, inhuman, or

degrading treatment in the Niger Delta region and that the

defendants’ actions in the Niger Delta had caused the

destruction of riverbeds, natural ecosystems, and had55 See Wiwa et al v. Royal Dutch Petroleum et al, Retrieved from<http://ccrjustice.org/ourcases/current-cases/wiwa-v.-royal-dutch-petroleum>, (Accessed on December 9, 2010); Wiwa v. Shell, Retrieved from<http://wiwavshell.org/the-case-against-shell/>, (Accessed on December 9,2010).56 The trust is intended to fund initiatives in Ogoni such as education,women’s programmes, adult literacy and support for small enterprise. SeeWiwa v. Shell, id. 57 Earth Rights International, Wiwa v. Royal Dutch Shell, id.; see CCR andEarth Rights International, June 3, 2009: Appeals Court Rules Against ShellNigeria, Retrieved from <http://wiwavshell.org/june-3-2009-appeals-court-rules-against-shell-nigeria/>, (Accessed on December 8, 2010).58 Bowoto v. Chevron, No. 09-15641, at 13-17 (9th Cir. Sept. 10, 2010).

20

contributed to extreme land erosion. It was decided that

Chevron was not liable for any of the numerous allegations.59

There is however a threat of closure of the open door of

ATS as illustrated in the case of Kiobel v. Royal Dutch Petroleum.60

In this instant case, there was a glaring departure from the

decision in Wiwa v. Shell. In that case, the Nigerian

plaintiffs61 claimed that the defendant oil companies

cooperated in human rights violations by the Nigerian

government. The plaintiffs alleged that Royal Dutch Petroleum

Company and Shell Transport and Trading Company, acting

through a Nigerian subsidiary, aided and abetted the Nigerian

dictatorship’s violent suppression of protests against oil

exploration and development activities in the Ogoni region of

the Niger Delta. On September 17, 2010 the Second Circuit of

the Appeals Court dismissed the case.62 The Kiobel dismissal59 Wikipedia, the Free Encyclopedia. “Bowoto v. Chevron Corp.” Retrievedfrom <http://en.wikipedia.org/wiki/Bowoto_v._Chevron_Corp>, (Accessed onDecember 7, 2010). See Braden Ridalli, Jury clears Chevron of charges inNigeria clash, REUTERS , December 2, 2008 Available at<http://www.reuters.com/ article/ousiv/idUSTRE4B093N20081202 >, cited inWikipedia, the Free Encyclopedia, Alien Tort Statute, Retrieved from<http://en.wikipedia.org/wiki/Alien_Tort_Statute>, (Accessed on December 7,2010).60 Kiobel v. Royal Dutch Petroleum, No. 06-4800-cv, 06-4876-cv, 2010 WL3611392 (2d Cir. Sept. 17, 2010).61 Including Esther Kiobel, the wife of a member of the “Ogoni Nine” who was executed by hanging in 1995along with a Nigerian author and environmentalist, Ken Saro-Wiwa.62 It is noteworthy that in less than ten days prior to the ruling of theSecond Circuit in Kiobel, a California district court reached the same

21

has garnered attention because of its broad holding that

corporations are not subject to suit under the Alien Tort

Statute. In the absence of any action by the Second Circuit

en banc, the U.S. Supreme Court, or Congress, corporations will

no longer be subject to suit under the Alien Tort Statute in

the Second Circuit, or in any circuit that adopts the

reasoning of the Second Circuit.63 On October 15, 2010, CCR,

ERI and other organizations filed an amicus brief in Kiobel v. RDPC,

arguing that corporations can be liable under the ATS (ATCA)

since international law is mainly enforced through domestic

remedies, and domestic federal law permits suits against

corporations.64

conclusion. See Doe I v. Nestle, No. 2:05-cv-05133, at 121-60 (C.D. Cal. Sept.8, 2010). It has been pointed out that: The 2nd Circuit of the appealscourt in a 2-1 panel decision, on Sept. 17 the court held that corporationscan’t be sued under the ATS because the statute invokes the law of nations—and international law, and the majority ruled that it doesn’t provide forcivil claims against corporations. The court dismissed the claims for lackof subject matter jurisdiction, and in doing so threw into question the useof the ATS against corporations. Compared to other recent ATS claimsagainst corporations, the case isn’t novel, but the outcome is a departurefor ATS cases, see Maleske Melissa, Court Decision Could Block Alien TortStatute Claims Against Corporation: An appeals court ruling may changefuture ATS litigation concerning human rights violations, Retrieved from<http://www.insidecounsel.com/Issues/2010/ November-2010/Pages/Court-Decision-Could-Block-Alien-Tort-Statute-Claims-Against-Corporations.aspx>,(Accessed on December 9, 2010); Wikipedia, the Free Encyclopedia, AlienTort Statute, supra note 58.63 C.L. Keitner, Kiobel v. Royal Dutch Petroleum: Another Round in theFight Over Corporate Liability Under the Alien Tort Statute, ASIL INSIGHT,September 30, 2010, Volume 14, Issue 30, Retrieved from<http://www.asil.org/files/insight 100930pdf.pdf>, (Accessed on December 9,2010).64 See Wiwa et al v. Royal Dutch Petroleum et al, supra note 54.

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(iii) The Ogoni Award: An Open Door in the British

High Courts

In April 6, 2011, proceedings against Royal Dutch Shell

and Shell Petroleum Development Company (SPDC) Nigeria

commenced in the High Court in England over two oil leaks in

2008 and 2009 that caused devastating damage to the

environment and the waterways in particular to the fishing

community of Bodo.65 This class-action lawsuit was brought by

the Bodo Community in the Niger Delta. Martyn day of the

London based law firm Leigh Day & Co66 represented the Bodo

Community and brought the legal claim for damages against

Royal Dutch Shell Plc.; and its subsidiary, Shell Petroleum

Development Company (Nigeria) Ltd.67 It was the first time

these companies have faced claims in England for damages

resulting from their operations in Nigeria.68 The Niger Delta

victims were able to file the case by virtue of the 2005

European Court of Justice ruling that made it easier for65 John Donovan, Nigeria: oil spills - Shell to Pay $410m to Ogoniland,Retrieved from <http://portaltoafrica.com/news/africa/general/oil-spills-shell-to-pay-410m-to-ogoniland>, (Accessed on 15th October, 2011). See also Vidal, supranote 33.66 This law firm represented the Ivory Coast community that suffered healthdamage as a result of the dumping of toxic waste by a ship leased to themultinational oil company called Trafigura in 2006. See Vidal, id.67 Huhuadmin, supra note 30. 68 Id. See Donovan, supra note 65.

23

groups of litigants to take legal action in the European

courts and affords claimants an automatic right to sue in the

defendant's home country.69

According to Shell, it was informed of the first leak in

early October 2008, but the Bodo community countered that at

the time of the leak the company had pumped oil for about six

weeks. Even then it took Shell over a month to repair the

weld defects in one of its pipelines which had resulted in oil

leakages into the community at an estimated rate of 2,000 bpd.

The oil spill caused massive contamination in the creek,

rivers and waterways in the Bodo area, as well as the

mangroves, causing devastating pollution to the entire area.

The damage was estimated to have affected about 20 square km

of Gokana local government area of Rivers State. A further

spill occurred in December 2008, due to equipment failure. It

was not capped until February 2009, when greater damage had

been inflicted upon the creek, as tens of thousands of barrels

of crude oil were pumped into the surrounding rivers and

creeks.70 In the face of overwhelming evidence of their69 See Donovan, id.70 Id. The reported further stated that the amount of oil spilled isestimated to be as large as the spill that caused the Exxon Valdez disasterin Alaska in 1989. The size of the coastline affected is equivalent tothat damaged by the BP Deepwater Horizon spill in the Gulf of Mexico in2010. The total amount of oil spilled was approximately 20 per cent of the

24

culpability in the spills, it took Shell barely four months to

accept liability, instead of going through an expensive

litigation, which they will inevitably lose. In admitting

culpability, Shell Nigeria has said:

SPDC accepts responsibility under the Oil PipelinesAct for the two oil spills both of which were dueto equipment failure. SPDC acknowledges that it isliable to pay compensation - to those who areentitled to receive such compensation."71

The High Court in London ordered the Royal Dutch Shell to pay

compensation of potentially more than £250m ($410m) after the

Anglo-Dutch oil group admitted liability for the two spills.

The compensation is to be paid to the 69,000 people affected

by damage caused by the leaks. They are mostly fishermen who

typically earn about $4000 to $7000 a year on average.72

Mr. Day has asserted that there was an increasing trend

for these types of compensation claims to be brought in

London's High Court instead of being brought before local

courts where litigation could linger on for years. According

to him, "The Nigerian courts have found it very difficult to

deal with these cases speedily and the claimants have rarely

amount leaked into the Gulf of Mexico, following British Petroleum (BP)'sdisaster last year. 71 Id.72 Huhuadmin, supra note 30.

25

received compensation as a result."73 Many other communities

that are victims of oil pollution in the delta are now

expected to seek damages against Shell in the British courts.74

Patrick Naagbartonm, Coordinator for the Centre of Environment

and Human Rights in Port Harcourt, has pointed out that "The

news that Shell has accepted liability in Britain will be

greeted with joy in the delta. The British courts may now be

inundated with legitimate complaints."75 For instance, the

matter of the 2006 oil spillage at Olomoro Community76 can now

be brought before the British High Court for claims against

Shell Petroleum Development Company.77

III. CONCLUSION

The article has attempted a portrayal of the extremely

inhuman environmental degradation that the Nigerian Niger

Delta has experienced as a result of oil pollution. It has

73 Id.74 Vidal, supra note 33.75 Id.76 Emma Amaize, Oil spill in Nigeria destroys aquatic life and economiccrops, Retrieved from<http://www.gasandoil.com/news/africa/a01e8b9abb6b6a7a5727b296054 bbb9d>,(Accessed on 20th October, 2011).77 There was an oil spillage that occurred at Olomoro in Isoko South localgovernment area in 2006 which resulted in the destruction of aquatic lifeand economic crops and also polluting the groundwater and fishing ponds inthe community. It was reported that the crude oil spill from a ShellPetroleum Development Company drilling site in the village was said to havebeen from an obsolete pipe. Dead fish was found in fishing ponds and thecrude oil even entered the houses of some villagers. See Amaize, id.

26

also explored different legal mechanisms such as the

traditional common law approach employed in the Nigerian

courts, the Alien Tort Statute in the United States, and the

recent open-door for redress in the British High Court which

various individuals, groups, and communities have employed to

secure environmental protection in the Niger Delta with a view

to ascertaining their effectiveness or otherwise in providing

the desired environmental protection.

With regard to the traditional common law approach

employed in the Nigerian courts, it has been stated that the

impact of applying the traditional common law torts of

nuisance, negligence, trespass, and strict liability in the

protection of the environment has been ineffective as their

application in environmental protection is fraught with

inherent and diverse problems.78 Moreover, it is observed that

a number of cases brought by Nigerians against oil companies

have been decided under the Alien Tort Statute in the United

States. But with the decision in Kiobel v. Royal Dutch Petroleum79 in

which the Second Circuit of the Appeals Court dismissed the

case holding that corporations are not subject to suit under

78 Esavwede, supra note 52. 79 Id.

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the Alien Tort Statute, there is a threat of closure of the

open door granted by the ATS. In the absence of any action by

the Second Circuit en banc, the U.S. Supreme Court, or

Congress, corporations will no longer be subject to suit under

the Alien Tort Statute in the Second Circuit, or in any

circuit that adopts the reasoning of the Second Circuit. This

approach therefore seems to have lost its effectiveness.

However, with the recent Ogoni award80 in which a High

Court in London ordered the Royal Dutch Shell to pay

compensation of potentially more than £250m ($410m) after the

Anglo-Dutch oil group admitted liability for the two spills,81

there is a new open door for claims against oil corporations

in British High Courts. It is therefore recommended that

communities in Niger Delta that are currently suffering and/or

have suffered oil pollution in the past without any just

compensation from oil companies should avail themselves of

this open door by bringing claims to the British High Court

for redress. For instance, the matter of the 2006 oil spillage

80 It involved a class-action lawsuit brought by the Bodo Community ofOgoniland in the Niger Delta over two oil leaks in 2008 and 2009 thatcaused devastating damage to the environment and the waterways inparticular to the fishing community of Bodo. Donovan, supra note 65.81 Huhuadmin, supra note 30.

28

at Olomoro Community82 can now be brought before the British

High Court for claims against Shell Petroleum Development

Company.

Finally, it is a glaring fact that the outcome of

attempts to securing environmental rights and protection

through litigation is generally unpredictable as depicted in

the traditional common law approach employed in the Nigerian

courts as well as the Alien Tort Statute in the United States

which has hitherto in some cases proved to be a means of

compelling multinational companies to be accountable for their

environmental injustice but with the decision in Kiobel v. Royal

Dutch Petroleum83 has become an unsure channel as discussed above.

Therefore, since the magnitude of oil pollution in the

Nigerian Niger Delta with its deadly effects may be tantamount

to genocide in disguise, the unilateral intervention of the

United Nations is strongly recommended. The United Nations

Environmental Program should therefore carry out an

independent assessment of the entire Niger Delta region and

make binding recommendations to affected culprits.

82 Amaize, supra note 76. 83 Id.

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