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

Azubuike, S. I., & Songi, O. (2020). A Rights-based Approach to Oil Spill Investigations: A Case Study of theBodo Community Oil Spill in Nigeria. Global Energy Law and Sustainability, 1(1), 28-54.https://doi.org/10.3366/gels.2020.0005

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

Smith I. Azubuike* and Ondotimi Songi**

Abstract: Oil-bearing local communities in resource-rich developing countries suffer human rights violations after an oil spill. The

violations arise as a result of impacted water sources, destruction of the environment and access to food, affected economic

livelihood, etcetera. In the oil spill investigation process, the existing laws do not incorporate an assessment of the human

rights impacts of the spill, to forestall subsequent human rights infringement when another oil spill occur. The Bodo

community oil spill in Nigeria is a case in point. This article utilises a Human Rights Impact Assessment (HRIA) framework

to examine the oil spill investigation regime in Nigeria, regarding the Bodo community oil spill. The essence is to identify

the flaws in the investigation process, assist in holding duty-bearers accountable to their human rights obligations and

responsibilities while empowering local communities as right-holders in the oil spill investigation process. This article

seeks to incorporate the HRIA framework into the oil spill investigation regime to prevent further human rights violations

post-oil spill. It notes that the application of the core procedural elements of HRIA – DM-PACT - is fundamental to

improving the human rights experience after an oil spill. As a result, the framework could be mainstreamed into policy,

legal, regulatory processes and management systems to enhance restorative and energy justice post-spill and to enhance

post-spill or accident investigation to improve the human rights experience in the energy sector.

* Dr Smith I. Azubuike holds a PhD in Energy Law and Policy from the Centre for Energy, Petroleum & Mineral Law & Policy,

University of Dundee and is the Africa Regional Coordinator at the Extractives Hub, CEPMLP, University of Dundee. Smith is a

Tutor in English Contract Law and English Criminal Law and Evidence at the School of Law, University of Dundee. He is a Barrister

and Solicitor of the Supreme Court of Nigeria. Correspondence email: azubuikesmithph@yahoo.com ** Ondotimi Songi is a Ph. D Candidate at the Centre for Energy, Petroleum & Mineral Law & Policy, University of Dundee. He is a

Barristers and Solicitors of the Supreme Court of Nigeria.

Keywords: Oil spill investigation; human rights; energy justice; environmental Justice; rights-based

approach; Bodo Community; Nigeria; John Ruggie; corporate accountability; due diligence.

1. INTRODUCTION

Oil-bearing communities in hydrocarbon-rich developing countries are the first recipients of human rights

infringements when an oil spill occur. Nigeria’s Niger Delta (ND) is one of the usual reference locations for

discussions on environmental pollution and its impact on local communities, mainly as a result of the

activities of oil and gas companies operating in the region.1 The ND trumps the Gulf of Mexico when it

comes to oil spill occurrences with about 9 to 11 million barrel of oil spilt as against the Gulf of Mexico’s

official estimates of about 4.1 million barrels of spilt oil.2 Unlike the Gulf of Mexico, the oil spills in the ND

remain largely not cleaned-up. The significant occurrence of oil spills suggests the non-application of

internationally recognized standards to prevent oil spills even though Nigerian law requires companies to

adopt ‘good oil field practices’ such as standards of the American Petroleum Institute for all petroleum

production and transportation operations.3 The law requires that in the event of an oil spill, petroleum

companies should take ‘prompt steps’ to initiate clean-up operations within 24 hours of the discharge.4

The less obvious impact of oil spills are the human rights impacts that local communities suffer from

following an oil spill.5 The contamination of land, surface and groundwater, and sedimentary contamination

leaves local farmers without food and local fishermen/fisherwomen without fishes.6 All these impacts on the

right to a clean and healthy environment, the right to food, the right to portable water, entitlement to an

adequate standard of living, the right to earn a living via work, and the right to health. The result is an impact

on the livelihood of local communities as they cannot survive without food and water. These human rights

impacts call for active public participation in the oil spill investigation process to ensure environmental and

energy justice for local communities. Environmental justice7 seeks to compensate for harm to man and the

environment8 while energy justice,9 using the element of procedural justice, ensure the involvement of people

in decision-making procedures around energy system infrastructures, technologies10 and processes such as

in oil spill investigation to provide more equitable and just energy policy outputs. Entrenched in

1 . Victoria E Kalu and Ngozi F Stewart, ‘Nigeria’s Niger Delta Crises and Resolution of Oil and Gas Related Disputes: Need for a

Paradigm Shift’ (2007) 25(3) Journal of Energy and Natural Resources Law 247. 2 . Richard Steiner, ‘Double standard: Shell Practices in Nigeria Compared with International Standards to Prevent and Control

Pipeline Oil Spills and the Deepwater Horizon Oil Spill’ (Friends of the Earth Netherlands, November 2010) <http://oasis-

earth.com/Resources/ Milieudefensie%20rapport%20Shell%20Double%20Standard%20L%2010-50-4435%20LR. pdf >

accessed 12 June 2019. 3 . The Mineral Oils (Safety) Regulations of 1962 made pursuant to the Nigerian Petroleum Act 1969, Cap P10, Laws of the

Federation of Nigeria (LFN), 2004. 4 . Department of Petroleum Resources (DPR), Environmental Guidelines and Standards for the Petroleum Industry in Nigeria

(EGASPIN) as revised in 2002,148 states, among other things that: ‘clean-up shall commence within 24 hours of the occurrence

of the spill’. 5 . Eloamaka Carol Okonkwo, ‘Environmentally displaced persons in the Niger Delta: Challenges and Prospects’ in Jordi Jaria I

Manzano, Nathalie Chalifour and Louis J. Kotzé (eds), Energy, Governance and Sustainability (Edward Elgar Publishing Ltd

2016). 6 . Zelda Anne Elum, Keletso Mopipi and Adanna Henry-Ukoha, ‘Oil Exploitation and its Socioeconomic Effects on the Niger

Delta Region of Nigeria’ (2016) 23(13) Environmental Science and Pollution Research 12880-9. 7 . The United States Environmental Protection Agency defined environmental justice as ‘the fair treatment and meaningful

involvement of all people regardless of race, color, national origin, or income, with respect to the development, implementation,

and enforcement of environmental laws, regulations, and policies’. Available from <https://www.epa.

gov/environmentaljustice> accessed 20 August 2019. 8 . Kerri Woods, ‘What does the language of Human Rights bring to campaigns for Environmental Justice’? (2006) 15(4)

Environmental Politics 572; Harry M Osofsky, Kate Baxter-Kauf, Bradley Hammer, Ann Mailander, Brett Mares

‘Environmental justice and the bp deepwater horizon oil spill’ (2012) 20(1) New York University Environmental Law Journal

99. Environmental justice aligns with restorative justice which seek to repair the harm done to people. In this regard it could be

applied to post energy accidents where the oil company is responsible for the accident as is the case with Shell in the Bodo oil

spill. 9 . Raphael J Heffron and Darren McCauley, ‘The Concept of Energy Justice across the Disciplines’ (2017) 105 Energy Policy 658–

667. Energy Justice has three fundamental elements – procedural justice, distributional justice and recognitional justice.

Procedural justice relates to our discussion in this paper as it deals with the ability of people to be involved in decision-making

procedures around energy system infrastructures, technologies, and procedures. 10 . Ramazan Sari, Ebrua Voyvoda, Max Lacey-Barnacle, Eminegul Karababa, Cagatay Topal and Demet Islambay, (2017) ‘Energy

Justice: A Social Sciences and Humanities Cross-cutting Theme Report’ (SHAPE ENERGY Technical Report, 19 January 2018)

<https://shapeenergy.eu/index.php/publications/> accessed 23 May 2019.

environmental justice is the principle that disadvantaged communities should not be subject to

disproportionate ecological impacts.11

Accordingly, an oil spill investigation (OSI) should be conducted appropriately, as a flawed OSI process

would not only hamper energy and environmental justice but would further aggravate the human rights

impacts that local communities will encounter. Interestingly, the determination of the cause(s), extent and

effects of an oil spill is the duty of government regulators, in collaboration with other stakeholders. However,

evidence shows that government investigators lack the technical capacity to undertake such an

investigation.12 The result is that the oil and gas companies that are often answerable for the oil spill lead the

oil spill investigation. The practise adopted in both the Deepwater Horizon accident and the Fukushima

disaster investigation could help to promote human rights post-spill in Nigeria.

Disclosure and participation form part of the core elements of the HRIA framework, adopted in the

Deepwater Horizon13 and Fukushima accidents investigations.14 Through public participation and site visits,

the Fukushima Commission noted that ‘residents in the affected area are still struggling from the effects of

the accident. They continue to face grave concerns, including the health effects of radiation exposure,

displacement, the dissolution of families, disruption of their lives and lifestyles and the contamination of

vast areas of the environment. The Commission concludes that the government and the regulators are not

fully committed to protecting public health and safety; that they have not acted to protect the health of the

residents and to restore their welfare’. These findings enabled and canvassed support for energy and

environmental justice in the Fukushima disaster, which is essential in promoting human rights in the energy

sector. In the Nuclear energy sector, the liability regime facilitates environmental justice as it ensures that

potential victims will be compensated promptly and efficiently after a nuclear accident.15

The focus of this paper is to promote procedural and environmental justice to improve the human rights

experience and to forestall further rights violation when an oil spill occurs. This article utilises an HRIA

framework to examine the OSI regime in a developing country such as Nigeria. The HRIA framework will

assist in identifying the human rights flaws in the current practice and suggests measures that can support in

holding duty-bearers accountable to their human rights obligations and responsibilities while empowering

local communities as right-holders in the OSI process. The basis for choosing Nigeria and Bodo community

as a case study arise from the many oil spill occurrences and unattended human rights concerns following

the oil spills.

This article applies the various core procedural elements of the HRIA framework. It notes that the

application of the core procedural elements of HRIA – DM-PACT- is fundamental to improving the human

rights experience and promoting energy (procedural justice)16 and environmental justice after an oil spill has

occurred. This is because, energy justice, just like the HRIA framework, gives the impacted community a

voice in seeking for restorative or environmental justice.

2. ASSESSING THE LITERATURE ON OIL SPILL INVESTIGATION AND HUMAN RIGHTS IN NIGERIA

There is a core set of leading texts about the oil spill and environmental degradation in the Niger Delta of

Nigeria. Some of this literature examines the impact of an oil spill on oil-bearing communities. One of the

11 . David Schlosberg, ‘Theorising environmental justice: the expanding sphere of a discourse’ (2013) 22(1) Environmental Politics

37–55. 12 . Akpofure Rim-Rukeh, ‘Oil Spill Management in Nigeria: SWOT Analysis of the Joint Investigation Visit (JIV) Process’ (2015)

6 Journal of Environmental Protection 259–271. 13 . National Commission on the BP Deepwater Horizon Oil Spill and Offshore Drilling, ‘Deep Water: The Gulf Oil Disaster and the

Future of Offshore Drilling’ (Report to the President, January 2011) <https://www.govinfo.gov/content/pkg/GPO-

OILCOMMISSION/pdf/GPOOILCOMMISSION.pdf> accessed 30 May 2019. 14 . The National Diet of Japan, ‘The official report of the Fukushima Nuclear Accident Independent Investigation Commission’

2012, available from <https://www.nirs.org/ wp-content/uploads/fukushima/naiic_report.pdf> accessed 20 June 2019. 15 . Raphael J Heffron, Stephen F Ashley, William J Nuttal, ‘The global Nuclear Liability Regime post Fukushima Daiichi’ (2016)

90 Progress in Nuclear Energy 1–10. 16 . Raphael J Heffron, Anita Rønne, Joseph P Tomain, Adrian Bradbrook and Kim Talus, ‘ATreatise for Energy Law’ (2018) 11

Journal of World Energy Law and Business 34–48.

leading articles in this area is Nwilo and Badejo’s17 article, which provides a historical background to

Nigeria’s petroleum development, identifies the spill incidents and the impact on the coastlines and local

communities. It also advanced a new trajectory for oil spill management to monitor coastal communities in

Nigeria. A related article is the UNDP report18 which assesses the human development issues in the Delta

and examines the social, environmental and economic challenges associated with petroleum extraction in

the Niger Delta while also proffering solutions to those issues.

ZA Elum and others19 explore the adverse effects (destruction of wildlife, biodiversity loss, air and water

pollution, degradation of farmland and damage to aquatic ecosystems) of oil exploration on the Niger Delta,

with a call on oil companies to modernise operating infrastructure and equipment to prevent avoidable oil

spillages. Similarly, J Nriagu and others20 focused on the health implications that follow oil exploration in

the Niger Delta. NG Ikpeze21examines the nexus between oil exploration, the environment and human rights.

He emphasises the impacts of oil exploration on the environment and human rights and the need to protect

human rights. Ikpeze concludes with a call to protect the environment through legislation and other means.

Other literature provides insights on how HRIA could be conducted using rights tools, but none of the

documents or articles utilised the HRIA framework to analyse oil spill investigation and the post-spill impact

of oil spill on human rights. One report from Amnesty International (AI)22 highlights the many oil spills in

Nigeria and the effect on the environment of the Niger Delta. Another AI23 report still focused on oil pollution

in Nigeria and its impact on the environment and human rights of local communities. The AI report relied

on the article examined the human rights implications of the spill on local communities in Ogoniland and

the systemic flaws in the oil spill investigations regime in Nigeria. The report did not, however, utilise an

HRIA framework to state how governments and corporations could manage post-spill human rights impacts

in the energy sector. Our paper fills this gap by exploring the HRIA framework to solve the post-oil spill

human rights impacts on local communities to improve the human rights experience during the OSI process.

The literature on human rights impact assessment does not provide how the human rights experience could

be improved upon during an OSI to forestall further rights violations and ensure restorative and procedural

justice for local communities in the OSI process. In this respect, our article is considered a fundamental

addition to the literature on the subject as it provides a framework that will prevent further human rights

violation post-spill and assist in investigating accidents or disasters in the energy industry in general, in

achieving restorative justice. Applying the core procedural elements of the HRIA framework, the article

advanced a pathway to improve the human rights experience post-spill, which also facilitates environmental

democracy.

3. THE HUMAN RIGHTS IMPLICATIONS OF OIL SPILL

Human rights are rights that inure to a person arising from his existence on earth.24 The usage of ‘human

rights’ here entails entitlement. These rights include but are not limited to the right to life, healthy

environment, food, and the right to work and earn a living.25 The socio-economic and environmental impacts

of oil pollution are extensive. They range from loss of biodiversity, damage to aquatic ecosystems, air and

17 . Peter C Nwilo and OT Badejo, ‘Oil Spill Problems and Management in The Niger Delta’ (2005) 2005(1) International Oil Spill

Conference Proceedings 567–570. 18 . United Nations Development Programme (UNDP), ‘Niger Delta Human Development Report’, Abuja: UNDP, 2006. 19 . ZA Elum, et al, (n 6). 20 . Jerome Nriagu, Emilia A. Udofia, Ibanga Ekong, and Godwin Ebuk, ‘Health Risks Associated with Oil Pollution in the Niger

Delta, Nigeria’ (2016) 13(3) International Journal of Environmental Research and Public Health 346. 21 . Nnamdi George G Ikpeze, ‘The Environment, Oil and Human Rights in Nigeria’, (2011) 2 Nnamdi Azikiwe University Journal

of International Law and Jurisprudence 88. 22 . Amnesty International, ‘Nigeria: Hundreds of Oil Spills Continue to Blight Niger Delta’ (Amnesty International. 19 March 2015)

<https://www.amnesty.org/en/latest/news/ 2015/03/hundreds-of-oil-spills-continue-to-blight-niger-delta/> accessed 23 June

2017. 23 . Amnesty International, ‘Nigeria: Petroleum, Pollution and Poverty in the Niger Delta’, London, 2009. 24 . Jack Donnelly, Universal Human Rights in Theory and Practice (3rd edn, Cornell University Press 2013) 7–8; see also Nnamdi

George Ikpeze, ‘The Environment, Oil and Human Rights in Nigeria’ (2011) 2 Nnamdi Azikiwe University Journal of

International Law and Jurisprudence 88. 25 . Ibid, 8.

water pollution, groundwater contamination, destruction of wildlife and degradation of farmland which

constitutes a significant source of economic and social existence for oil-bearing communities.26

Apart from environmental impacts, a recent study has shown that oil pollution has severe effects on

psychological and pathological health of oil-bearing communities.27 Accordingly, the enjoyment of nature-

given rights is impaired by oil pollution, particularly in the areas discussed.

3.1. The right to food

The right to food is recognised under the International Covenant on Economic Social and Cultural Rights

(ICESCR),28 and this means that food has to be available and accessible to citizens from productive land and

natural resources.29 Within the context of the right to food, governments are required ‘to protect and improve

existing food sources, and should not allow food sources to be destroyed or contaminated by private persons

or MNCs, thereby

preventing peoples’ effort to feed themselves’.30

Food provides livelihood and self-sufficiency for traditional communities, and this can be at risk through

the loss of natural sources to food occasioned by oil pollution.31 The African Commission in the Ogoni case

stated that ‘The African Charter on Human and Peoples’ Rights (ACHPR) require and bind States to protect

and improve existing food sources and to ensure access to adequate food for all citizens.32 In the Ogoni case,

the African Commission observed that Nigeria had violated the right to food by allowing oil companies to

destroy food sources. The UN Committee on Economic Cultural and Social Rights (CESCR) has stated that

food must be ‘free from adverse substances’.33 The numerous gas flares and oil spills damage farmlands,

crops, fishing rivers, and lack of proper environmental remediation has impacted adversely on food security.

3.2 The right to work and an adequate standard of living

The ICESCR provides for the right to gain a living through work.34 The right to an adequate standard of

living is also captured under Article 11 of the ICESCR and under Article 25 of the Universal Declaration of

Human Rights (UDHR) where human right is associated with the right to food, housing, health, and gaining

a living by working.35 It is, therefore, the duty of governments to take all necessary measures to protect this

right including infringements from third parties such as companies.

Local communities exercise the right to work and earn a living through the engagement in farming and

fishing as a means of sustenance and livelihood. The exercise of this right is impaired and livelihood

impacted where oil spill pollutes their farmlands and rivers. Thus, violating their rights to gain a living by

work and the right to an adequate standard of living as their source of food is destroyed. Oil spill in the ND

has resulted in increased degradation of the environment; occasioned food insecurity following the death of

crops and fish, and impact on farmlands and rivers for fishing activities thus resulting in the loss of

livelihood.36

3.3 The right to health and a healthy environment

26 . ZA Elum, et al, (n 6). 27 . J Nriagu, et al, (n 20). 28 . International Covenant on Economic, Social and Cultural Rights (adopted 16 December 1966, entered into force 3 January

1976)999 UNTS 3 (ICESCR) art 11. 29 . Commission on Economic, Social and Cultural Rights (CESCR), General Comment No 12 (1999) on the right to adequate food

(Article 11 of the International Covenant on Economic, Social and Cultural Rights, E/C 12/1999/5), para 12. 30 . The Social and Economic Rights Action Centre (SERAC) and the Centre for Economic and Social Rights (CESR) v Nigeria

(155/96), Decision of the 30th ordinary session of the African Commission of Human and Peoples’ Rights, Banjul, 13–27

October 2001, para 68 <http://www1.umn.edu/humanrts/africa/comcases/155-96b.html> accessed 10 February 2014. 31 . Desiree Abraham and Yann Wyss, ‘Guide to Human Rights Impact Assessment and Management’, Road-Testing Draft, June

2007, 76. 32 . SERAC and CESR v. Nigeria, (n 30) para 68. 33 . CESCR, General Comments No 12 (n 29) para 8. 34 . ICESCR Art 6. 35 . M Craven, The International Covenant on Economic, Social and Cultural Rights (Oxford University Press, 1995) 293. 36 . ZA Elum, et al, (n 6) 12880; see also Adati Ayuba Kadafa, ‘Oil Exploration and Spillage in the Niger Delta of Nigeria’ (2012)

2(3) Civil and Environmental Research 38.

Also recognised under the ICESCR is the right to health which includes the conditions of the right to a

healthy environment.37 In fulfilling this right, the State has to improve environmental and industrial

hygiene.38 The responsibility of the State in this regard extends to the prevention and reduction of exposure

of its population to harmful substances.39 Article 16 of the ACHPR40guarantees the right to health while also

providing for the right to a clean and healthy environment under Article 24. It has been observed that the

pollution and environmental degradation of local communities in the Niger Delta, and indeed Ogoniland,

made the living conditions of the people a nightmare.41 Waters from rivers, creeks and streams that have

been polluted by oil spills are relied upon for cooking, drinking and bathing by communities, thereby

exposing them to serious health challenges.42

Medical research has shown that ‘direct contact with the oil or its vapours can cause skin rash and eye

redness while prolonged and repeated exposure at low concentrations can cause nausea, dizziness, headache

and somnolence.’43While empirical studies that directly link gas flaring to health impacts are lacking, there

are indications that pregnant women are prone to air-borne diseases during this period.44 There are studies

linking gas flaring with acid rain and acid deposition though the quantity is unclear.45 Generally, the

discomfort from the light coming from the flared gas and the dust that settles in homes undermines the right

to a healthy environment and the right to health of local communities.

Pollution of the environment via gas flaring received judicial disapproval when a Federal High Court in

Nigeria held that gas flaring violated the constitutional right of local communities in the Niger Delta and that

these communities have a right to life and dignity of the human person which includes the right to clean

environment.46 Although this decision reflects the decision in the Ogoni case, gas flaring has continued

unabated in the Niger Delta even though the court ordered an end to it. Interestingly, the government’s

deadlines to end gas flaring have been met more in the breach than compliance.

4. THE REGIME FOR OIL SPILL INVESTIGATION IN NIGERIA

This paper notes that Nigeria has a regulatory system that aims to protect human rights ex-ante and ex-post

oil pollution. These laws are to wit: The Constitution of the Federal Republic of Nigeria (CFRN), 1999 as

amended;47Environmental Impact Assessment Act;48 National Environmental Standards and Regulations

Enforcement Agency (NESREA) (Establishment) Act;49National Oil Spill Detection and Response Agency

(Establishment) Act;50 Petroleum Act;51 Oil Pipeline Act,52 and Oil in Navigable Waters Act;53 etc.

The CFRN provides the basis on which the OSI process is established. It provides for the improvement

and protection of the environment for the safeguard of land, water air etc. It also provides for human rights

37 . CESCR, General Comment No. 14 (2000) on the right to the highest attainable standard of health (Article 12 of the International

Covenant on Economic, Social and Rights, E/C.12/2000/4), para 4. 38 . ICESCR, article 12.2 (n 28). 39 . CESCR para 15 (n 29); NG Ikpeze (n 21) 91. 40 . African Charter on Human and Peoples’ Rights (adopted 27 June 1981, entered into force 21 October 1986) (1982) 21 ILM 58

(African Charter). 41 . SERAC and CESR v Nigeria (n 30) para 70. 42 . Adata Ayuba Kadafa, Mohamad Pauzi Zakaria, Fadhilah Othmanl, ‘Oil Spillage and Pollution in Nigeria: Organisational

Management and Institutional Framework’ (2012) 2(4) Journal of Environmental and Health Science 22. 43 . Xavier Bosch, ‘Exposure to oil spill has detrimental effect on clean-up workers’ health’ (2003) 361(9352) The Lancet 147. 44 . Amnesty International, ‘Nigeria: Petroleum, Pollution and Poverty in the Niger Delta’, London, 2009. 45 . See Gas flaring study of Obiafu/Obrikom Gas Recycling Plant, Ebocha Oil Centre, Oshi Flow Station and Akri Flow Station,

submitted to NAOC by Ecosphere Nigeria Limited, April 1998. 46 . Gbemre v. SPDC, Federal High Court of Nigeria in Benin City, 14 November 2005, Suit No. FHC/B/CS/53/05; (2005)

AHRLR 151 (NgHC 2005). 47 . Cap C20, Laws of the Federation of Nigeria (LFN), 2004. 48 . Cap E12, LFN, 2004. 49 . Cap N164, LFN, 2004. 50 . Cap N157, LFN, 2004. 51 . Cap P5, LFN, 2004. 52 . Cap O8, LFN, 2004. 53 . Cap O6, LFN, 2004.

that should be guaranteed and protected. These rights, as provided in the CFRN,54 are linked with the

Fundamental Objectives and Directive Principles of State Policy which the State must seek to achieve.55

In Nigeria, it is the responsibility of the Department of Petroleum Resources (DPR) to regulate

environmental issues in the oil industry, provide guidelines and enforce standards for the conduct of

petroleum activities among other functions.56 This responsibility extends to the investigation of an oil spill

and its immediate remediation to avoid the impairment of the environment and man. Other statutory agencies

of the Federal Government such as the National Environmental Standards and Regulations Enforcement

Agency (NESREA) and the National Oil Spill Detection and Response Agency (NOSDRA) perform

supplementary roles to that of DPR.

NOSDRA is the primary regulatory agency saddled with the responsibility for coordinating and

implementing oil spill contingency plan in Nigeria and also setting up machinery to perform other related

activities concerning oil spill detection in Nigeria.57 While it is the agency’s responsibility to detect and

respond to oil spills, the agency admits that it is unable to independently do so without reliance on the MNC,

whose activities are most times linked to these oil pollutions. This leaves open to criticism, the accuracy of

the report regarding the magnitude and cause of

the spill.58

4.1. The Investigation Process

OSI in Nigeria is usually carried out by a Joint Investigation Team (JIT). Upon the occurrence of an oil spill,

the JIT mobilises to the impacted site to find out amongst other things, the actual cause of the oil spill, and

the impacts recorded in a form called the Joint Investigation Visit (JIV) form to put in place remediation or

clean-up mechanisms for restorative justice.

Accordingly, an OSI process is expected to reveal, amongst other things the following in a JIV form to

adequately address human rights concerns arising from an oil spill:

(a) The degree of regulatory control in the JIV process. This is necessary for the report to be accurate and

impartial by anybody;

(b) The date the oil spill started and how this was established. This is also vital as it will provide an insight

into the length of the oil spill and enable the calculation of the volume of oil spilt;

(c) The actual cause of the oil spill, the amount spilt and how this was arrived at and recorded;

(d) The area impacted and how it was ascertained and recorded;

(e) The role played by men and women of the affected community in the JIV process.59

54 . These rights are the fundamental human rights contained in the Constitution of the Federal Republic of Nigeria (CFRN) 1999,

Cap C20, LFN, 2004, sections 33–45. 55 . These rights are framed as fundamental objectives and directive principles of state policy which as the policies upon which the

nation should drive its national development. 56 . Sheldon Leader, David Ong, Tara Van Ho, Anil Yilmaz, Sabine Michalowski, Ulisses Netto, RosemaryDanesi and Beata

Wlodarczak, ‘Corporate Liability in a New Setting: Shell and the Changing Legal Landscape for the Multinational Oil Industry

in the Niger Delta’ (Essex Business and Human Rights Projects, 2012); S Awogbade, Sipasi S and G Iroegbunam ‘Getting the

Deal Through – Oil Regulation 2008: Nigeria’ 2008, 115 <www. gettingthedealthrough.com/> accessed 18 February 2014;

Department of Petroleum Resources (DPR), Environmental Guidelines and Standards for the Petroleum Industry in Nigeria

(EGASPIN) as revised in 2002. 57 . DPR, EGASPIN as revised in 2002. 58 . Eyene Okpanachi, ‘Confronting the Governance Challenges of Developing Nigerian Extractive Industry: Policy and Performance

in the Oil and Gas Sector’ (2011) 28(1) Review of Policy Research 43–44. 59 . Zhendi Wang and Scott Stout, Oil Spill Environmental Forensics: Fingerprinting and Source Identification (Elsevier 2007). For

full details on oil spill investigations; see also Qianxin Lin, Irving A.Mendelssohn, ‘A Comparative Investigation of the Effects

of South Louisiana Crude Oil on the Vegetation of Fresh, Brackish and Salt Marshes’ (1996) 32(2) Marine Pollution Bulletin

203–208.

The JIT is expected to be made up of officials from the Oil Company, security forces, members of the affected

community, and representatives from DPR, NOSDRA, and the State Ministry of Environment in the state

where the oil spill occurred.60 Participation is a crucial element of procedural justice.61

After investigating the cause of oil pollution, the JIT is expected to sign the JIV form, confirming the

actual cause of the spill. However, there may be disagreement over the exact cause of the spill, resulting in

the local communities refusing to sing the report. The report would have to be signed and made public.62 In

Nigeria, the investigation process is mostly supported and controlled by the MNCs. Multinational companies

provide technical, transport, and other logistic support that the regulatory agencies lack to conduct the spill

investigations. It has been observed that MNCs fix the day and time of the investigation, and sometimes

complete the JIV forms after a visit since their experts have the technical details.63

4.2. The Bodo Case Study

The central focus of this article is the Bodo oil spill and the numerous human rights violations arising from

the spills. Shell operates the pipelines in Bodo, and it is the biggest manifold in West Africa. Bodo is a

community in Ogoni, in Gokana Local Government Area of Rivers State in Nigeria. It is a traditional

community linked to several mangroves and small Islands known as Bodo creek.64 The creek serves as its

biodiversity and the source of livelihood to the community. It provides support for wood, fermentation or of

cassava, fish supply, local transportation etc. Although the protests in Ogoni following the environmental

degradation led to the eventual suspension of petroleum activities in the 1990s,65 crude oil transportation

continued through the network of pipelines that traversed the entire Ogoniland.

In 2008, Bodo was impacted by two major oil spills in 2008 and Shell accepted responsibility for the oil

spill. A humanitarian crisis emerged as native farmers and in public were unable to access the rivers and

farms for food, thus impacting source of livelihood and denying locals access to food, water, and a healthy

environment – the necessities of life.66

The community suffered economic loss as well, as it was once a trade and transportation hub to other

neighbouring villages. The Oil spills destroyed the ecosystem of Bodo with the result that even with going

deep into the rivers to fish, locals could still only eat contaminated fishes.67 In other words, the right to work

and earn a living was affected. The community’s right to a healthy environment was further with the report

of several ailments. The community’s toxic and contaminated soil could no longer grow food and cash crops

such as okra, pepper, fruits and vegetables. Thus, leading to a fall in crop yield, which affected the right to

food. The right to water was another impacted right as groundwater and rivers were polluted; water supply

had to come from tankers. Overall, the right to life was affected in Bodo community, resulting in the

comprehensive clean-up, remediation and compensation of the Ogoni people recommended by the United

Nations Environment Programme (UNEP) in its report on the assessment of Ogoniland.

As at mid-2018, the recommendations of the report are yet to be implemented by the Nigerian government.

Human rights violations continue unabated despite laws requiring the clean-up of impacted sites. The lack

of clean-up of oil in Ogoniland shows corporate failure to translate social responsibility into meaningful

60 . Joshua P Eaton, ‘The Nigerian Tragedy, Environmental Regulation of Transnational Corporations and the Human Right to a

Healthy Environment’ (1997) 15 Boston University International Law Journal 284. 61 . RJ Heffron and D McCauley (note 9). 62 . Amnesty International, ‘Nigeria: Bad Information – Oil Spill Investigations in the Niger Delta’, London: Amnesty International

Publications 2013, 66 noting that SPDC started making its JIV forms available on their website after 2011 and an independent

oil spill specialist, Accufacts, reviewed the photographic evidence attached to post- 2011 JIVs and concluded there were

weaknesses. 63 . The fact that Shell completes the forms after the field investigation was confirmed by the company in an interview with

Amnesty International which took place on 7 June 2013 at Shell’s London offices; see, Amnesty International, note 52 above. 64 . Scott Pegg and Nenibarini Zabbey, ‘Oil and Water: The Bodo Spills and the Destruction of Traditional Livelihood Structures in

the Niger Delta’ (2013) 48(3) Community Development Journal 391. 65 . Scott Pegg, ‘The Cost of Doing Business: Transnational Corporation and Violence in Nigeria’ (1999) 30(4) Security Dialogue

473. 66 . Ibid. 67 . United Nations Environment Programme (UNEP), ‘Environmental Assessment of Ogoniland’, Nairobi: UNEP, 2011, 137.

actions that ease the plight of local communities and indicates failure to address human rights issues – a

corporate responsibility in hydrocarbon development.68

5. FRAMEWORK FOR ANALYSIS: HUMAN RIGHTS

IMPACT ASSESSMENT

There are core procedural elements of an HRIAwhich are considered essential to conducting an impact

assessment69 and are sometimes like those utilised with other types of impact assessments such as the EIA

and SIA. The core procedural elements identified in this article are due diligence (D); monitoring and

evaluation (M); participation (P); accountability (A); collaboration (C); and transparency and access to

information (T); forming DM-PACT. In other words, an HRIA incorporates the DM-PACT core elements as

vital principles of the HRIA process that requires due diligence and monitoring and evaluation from duty

bearers; meaningful participation of right holders with particular attention to vulnerable and marginalized

groups; accountability of duty bearers; collaboration among stakeholders; and transparency of and access to

information for right holders.

5.1. Core procedural elements of Human Rights Impact Assessment 5.1.1. Due diligence

The term ‘due diligence’ in general expression can be translated to mean

‘reasonable care’ or ‘required carefulness’. Historically originating as a defence for broker-dealers accused

of inadequate disclosure of material information on the purchase of securities to investors,70 due diligence

has found its way into the human rights lexicon.

Firstly, the 2011 Guidelines for Multinational Enterprises require companies to investigate third party

suppliers and other business relationships for potential human rights abuses.71 The guidelines require

business enterprises to undertake human rights due diligence dependent on its size, the nature and context of

its operations and the severity of the risks of adverse human rights impacts.72Human rights due diligence

became recognised by the United Nations when Ruggie’s PRR framework and Guiding Principles (GPs)

were endorsed.73The GPs require companies to undertake human rights due diligence aimed at mitigating

actual and potential adverse human rights impacts.74 Similar to the OECD’s Guidelines, this will vary

according to a company’s size, the severity of the risks, and nature and context of a company’s

operations.75Understandably, human rights due diligence should be ongoing knowing that risks may change

over time.76

5.1.2. Monitoring and evaluation

Within the context of the HRIA, monitoring and evaluation (M&E) involve subjecting the HRIA to review

and assessment aimed at determining the extent to which it is not only keeping with its objectives but also

acceptable to stakeholders. The M&E process ensures that there is a need for a credible independent body

that reviews the performance of duty-bearers in the exercise of the due diligence in the HRIA process. The

objective of the review process is for corporations to know if their human rights policies are receiving

optimal implementation in tackling identified human rights impacts. The M&E of performance is essential

because the lessons learnt can be documented to help others undertaking an HRIA. Another reason for M&E

68 . S Pegg and N Zabbey (n 65) 391. 69 . James Harrison, ‘Human rights measurement: reflections on the current practice and future potential of human rights impact

Assessment’ (2011) 3(2) Journal of Human Rights Practice 162–187. 70 . United States’ Securities Act of 1933, section 11. 71 . Organisation for Economic Cooperation and Development (OECD), ‘OECD Guidelines for Multinational Enterprises’, Paris

Cedex: OECD Publishing. 31 <https://www.oecd.org/ corporate/mne/48004323.pdf> accessed 3 August 2017. 72 . Ibid. 73 . United Nations ‘Guiding principles on business and human rights: Implementing the United Nations ‘protect, respect and remedy’

framework’, New York and Geneva: United Nations Human Rights Office of the High Commissioner, HR/PUB/11/04, 2011. 74 . Ibid, Principle 17. 75 . Ibid, Principle 17(b). 76 . Ibid, Principle 17(c).

is to encourage excellent performance while discouraging bad practices. Independent M&E can also

strengthen the content and credibility of the human rights reporting mechanism. The M&E in the HRIA

process should not serve as a box-ticking exercise and companies that engage in such ‘green-washing’ should

rethink the process.

The GPs use the term ‘tracking’ the effectiveness of corporations’ response to addressing human rights

impacts by utilising both qualitative and quantitative indicators such as surveys, audits, and performance

contracts as well as stakeholder feedback, especially from project-affected communities.77Corporations

should ensure that their policies or projects on those who are at highest risk of vulnerability or

marginalisation, such as women, are monitored and evaluated to determine their effectiveness. Furthermore,

corporations with operations that pose severe human rights risks should ensure that enough information is

provided to allow for assessing the adequacy of a company’s human rights response.78

M&E should require stating who is responsible for undertaking the reviewing of the corporation’s policy

or project. The M&E process should indicate the timing or dates for reviewing the project or policy, including

the events or evidence that can trigger an early review. Importantly, M&E requires ensuring that right-

holders and affected groups such as communities are involved in the review process, and provision made to

guarantee their involvement as part of an on-going process. This is because, in some instances, there is

inadequate consultation in the HRIA process.79

M&E requires that the HRIA process has in-built post-review mechanisms that should determine whether

the recommendations have been entirely made public together with the methodology used. In some cases,

the claims by companies to have undertaken HRIAs are unverifiable or accompanied by the publication of

the full reports. In some situations, only a summary and conclusions or recommendations are made public.80

The monitoring and review process should further ensure that the duty-bearers have implemented the

recommendations made. It should also assess whether the implemented suggestions have been useful and

whether there are ongoing human rights impacts of the policy or project. Where there is a need for mostly

gender-disaggregated data collected on an ongoing basis, the review procedures should include how to

analyse the collected data.

5.1.3. Participation

A human rights impact assessment should involve meaningful participation with potentially affected groups

and other relevant stakeholders.81 Impact assessments emphasise the need to engage and consult with

stakeholders, and this is relevant because engagement is rooted in the normative framework of international

human rights law82 and energy justice.83 Affected individuals and communities must participate in the HRIA

process because they are in the best position to understand the potential and actual human rights risks of the

actions of companies and institutions of governments. These stakeholders and right holders are also relevant

because they lend some credence to the HRIA process. Project-affected communities can engage in the HRIA

process to verify the credibility of the methodology adopted and whether the results are reliable.84

77 . Ibid, Principle 20. 78 . Ibid, Principle 21(d); the IBLF and IFC’s HRIA tool referred to provides for effective grievance mechanism principles for

analyzing the adequacy of a corporation’s policy or project that is being assessed; see, D Abrahams and Y Wyss (n 31). 79 . On Common Ground Consultants, ‘Human Rights Assessment of Goldcorp’s Marlin Mine; Commissioned on behalf of Goldcorp

by the Steering Committee for the Human Rights Impact Assessment of the Marlin Mine’, Vancouver, BC: Canada, 2010 <http://

hria-guatemala.com/en/docs/Human%20Rights/OCG_HRA_Marlin_Mine_May_17.pdf> accessed 3 August 2017. 80 . Gare A Smith and Bennett Freeman, ‘Human rights assessment of the proposed tangguh LNG project: Summary of

recommendations and conclusions’, Presented to BP Indonesia (Foley Hoag, 19 April 2002)

<http://www.ideaspaz.org/tools/download/47408> accessed 4 August 2017. 81 . United Nations, note 61 above, Principle 18(b). 82 . Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters

(Aarhus Convention), art 6 &7; International Covenant on Civil and Political Rights art 25. 83 . Benjamin K Sovacool, Raphael J Heffron, Darren McCauley and Andreas Goldthau (2016) ‘Energy decisions reframed as justice

and ethical concerns’ (2016) 1 Nature Energy 16024. 84 . Tara J Melish and Errol Meidinger, ‘Protect, Respect, Remedy and Participate: new governance lessons for the Ruggie

framework’, In: R Mares (ed) The UN guiding principles on business and human rights: Foundations and implementation

(Martinus Nijhoff, 2012) 303–326; Parker C and Howe J, ‘Ruggie’s diplomatic project and its missing regulatory infrastructure’,

The GPs speak of meaningful participation and consultation by stakeholders when actual and potential

human rights risks are being assessed either from the activities of a companyor from its business

relationships.85 Similarly, the views of populations subject to heightened risks of vulnerability are required

to understand whether the actions of companies or other institutions in assessing impacts are practical.86 The

GPs further states that where consultation with stakeholders is not realistic, credible and independent, civil

society groups should be consulted.87 However, the issues of barriers to participation have to be considered

for participation to be meaningful and not another superficial exercise without real results from the HRIA

process. Some factors that may adversely affect participation, although context-specific include custom and

tradition forbidding women to participate, literacy, language, and disability with regards to access to venues

or lack of a sign language expert.88 It has been argued that participation is not granted as of right to

stakeholders89 but this view fails to take into consideration that the framework and GPs are underpinned by

human rights’ normative framework energy justice. Nevertheless, it still must be noted that the expression

‘meaningful consultation’ is subject to multiple interpretations so that it is essential to have detailed

guidelines farther operationalising the guiding principles.

In OSIs, the affected communities must be engaged in a community-led participatory process. This is

important because local people are experts in their own lives and can provide companies and government

institutions with the required information to assess the human rights impacts of their activities and

relationships. It must be noted that community participation in the OSI process would necessarily strengthen

the credibility of the process.

5.1.4. Accountability

The broad governance discourse, whether in public, private or not-for-profit sectors, is partly built on

accountability. This term expresses the expectations of giving accounts of the discharge of responsibilities

or obligations owed to the public or stakeholders.90 It ensures that the corporation or institution exercising

power is kept in check, as in the case of the human rights impact assessment. Corporations or government

institutions as the main participants and duty bearers in the due diligence framework under the GPs must be

accountable to right-holders in their performance of the task to undertake an HRIA. The human rights

framework is based on various accountability mechanisms making it part of its nature.91 In the context of the

HRIA, the extent to which a policy or project is being assessed or evaluated is part of the accountability

mechanism.

Accountability could also mean liability or blameworthiness depending on the context it is used. In that

context, the HRIA may determine that there have been violations of human rights. Accountability thus

requires that if an HRIA uncovers a breach of human rights, companies or States have to be held accountable

and should provide access to remedy through grievance mechanisms – State-based or corporate-based non-

judicial grievance mechanism.92Importantly, for these grievance mechanisms to be effective they would be

rights-compatible, predictable, equitable, accessible, legitimate, transparent, and open to continuous

learning.93

In: R Mares (ed) The UN guiding principles on business and human rights: Foundations and implementation (Martinus Nijhoff,

2012) 273–302. 85 . United Nations (n 73). 86 . Ibid. 87 . Ibid. 88 . James Harrison and Mary-Ann Stephenson, ‘Human rights impact assessment: review of practice and guidance for future

assessments’ (Edinburgh: Scottish Human Rights Commission, June 2010).

<http://hub.careinspectorate.com/media/107915/hriafeb2011.pdf> accessed 3 August 2017. 89 . T Melish and E Meidinger (n 84) 331. 90 . CA Dykstra, ‘The Quest for Responsibility’, (1999) 33(1) American Political Science Review, 1–25; R Williams, Leadership

accountability in a globalizing world (Palgrave Macmillan 2006). 91 . United Nations Development Programme (UNDP), Human Development Report (Oxford University Press 2000); Mary

Robinson, ‘What Rights can Add to Good Development Practice’, In: P Alston and M Robinson (eds) Human Rights and

Development: Towards Mutual Reinforcement (Oxford University Press 2005) 25. 92 . United Nations (n 73) Principle 27. 93 . Ibid.

The various level of duty-bearers presupposes that there are different levels of corresponding human rights

obligations and responsibilities, and this reflects in the HRIA accountability mechanism. It means that each

duty-bearers duty or liability for the outcome of a human rights policy or project of a corporation

demonstrates their level of accountability. In the Marlin Mine project, the HRIA notes that companies have

a higher degree of control over their core operations than external actors.94

5.1.5. Collaboration or cooperation

Collaboration is a strategic relationship whereby parties choose to cooperate to achieve shared objectives. It

is often voluntary and requires the leadership of one or more of the parties to sustain the collaborative

relationship. The promotion and advancement of international human rights have required the collaboration

of nations globally. It is on this basis that HRIA will require the cooperation of various stakeholders and

rightsholders. The assessment and identification of human rights impacts require participation from those

most affected as well as institutional players and civil society groups. The government’s obligation to protect

human rights requires that it cooperates with businesses and other non-state actors.

The GPs refers to collaboration on many occasions. Principle 7 dealing with the government’s support of

business’ respect for human rights in conflict-affected areas emphasises that they engage with other

enterprises in mitigating human rights risks. In other words, States are to forge closer cooperation with

various groups, including multilateral agencies aimed at policy coherence, in helping companies with human

rights risks mitigation in conflict-affected areas. Collaboration might mean awareness-raising, the provision

of capacity building, relevant information and other forms of technical support or assistance.95 Businesses

are further encouraged to cooperate, in the remediation through legitimate channels, human rights impacts

they have caused or contributed.96

5.1.6. Transparency and access to information

Transparency is ‘the openness and public disclosure of activities’.97 From a business perspective,

transparency allows the details of the activities of a company to be disclosed, so investors are well-informed

to make investment decisions. It is mainly for the actions or inactions of those in positions of power in any

sector – government, corporate, academic, not-for-profit and so on, to be exposed for the rest of the world to

see.

Transparency is critical to the effectiveness of the due diligence process, and the GPs made transparency

one of its core procedural elements. In performing its human rights protection obligation, transparency

ensures that the State should encourage or require businesses to communicate how to address their human

rights impacts.98 Corporations are also urged to externally communicate how they address human rights

impacts on stakeholders, especially those with severe risks in operations.99 Communication may be done by

engaging informally with affected stakeholders such as communities via in-person meetings, or through

online dialogues to formal reporting. The State ‘requiring’ communication may be due to significant risks

posed by human rights, and such policies or laws should indicate ‘what’ and ‘how’ communication should be

achieved, with enough information that allows for evaluating its adequacy and accuracy.

In other words, the adequacy test for companies is providing enough information that allows for evaluating

the adequacy of the companies’ response to human rights impact.100 Communication should also take into

consideration the safety and security of individuals and facilities, company size and structure, and legitimate

confidentiality requirements. Formal reporting, required where operations pose severe human rights risks,

has evolved from annual reports, corporate or sustainability reports, to strategic reports or integrated financial

and non-financial reports. There is a need for third-party or independent verification to ensure content

credibility. It is emphasized that to achieve strict transparency levels that guarantee a robust due diligence

94 . On Common Ground Consultants (n 79). 95 . United Nations (n 73) Principles 8 and 10. 96 . Ibid, Principle 22. 97 . Extractive Industries Transparency Initiative (EITI), ‘The EITI Glossary’, (EITI, no date) <http://eiti.org/glossary#Transparency>

accessed 27 January 2016. 98 . United Nations (n 73) Principle 3(d). 99 . Ibid, Principle 21.

100 . Ibid.

process; corporations must publish the full methodology and results of their due diligence assessment

processes – no matter the human rights risks uncovered.101 Thus transparency should relate to the extent to

which a policy or project is being assessed; the sufficiency of the details of its contents before its adoption;

and the extent to which the methodologies used and the findings of the assessment disclosed.102

However, there is also the corresponding risk of excessive disclosure capable of damaging essential

relationships with host governments that may be implicated by such revelations. How do companies then

balance transparency and confidentiality? There is often debate about whether to disclose the full assessment

or a summary of key findings and recommendations. In the interest of accountability, it is argued that an

honest evaluation and review are adequate;103 plus there may be tradeoffs, especially when handling sensitive

information. The appropriate level of disclosure requires being transparent on a broad range of components,

including methodology, approach, the fact that a company is performing these assessments, legal and safety

concerns, and stakeholder engagement. There must be a justification for any non-disclosures, and it should

be rare and narrowly framed as possible rather than being extensive. Judicial processes or their equivalents

are required to demand information disclosure in all but exceptional circumstances104 such as protecting

commercially sensitive information or protecting the name of an informant to ensure their safety.105

Generally, companies are afraid that excessive disclosure might reveal shortcomings that might open the

company to litigations. It is, however, argued that the whole essence of an HRIA is to show human rights

practices that promote participation, due diligence and accountability, akin to the energy justice

framework.106

Transparency’s relevance to the due diligence process is related to the need for developing a community

of practice that other assessors conducting due diligence can learn from; the need to build trust aimed at

engaging with stakeholders or to open communication lines with communities of rights holders that are

capable of identifying problems before they turn into human rights violations; and the need for independent

monitoring. The Dutch human rights organisation, argue that transparency is imperative to the HRIA process

because without the requisite information, not only would stakeholders be unable to be part of the

discussions, they cannot understand the company’s perspective.107

Access to information is one of the interpretations of transparency as posited by Bellver and Kaufmaan

who defined transparency as ‘the timely and reliable economic, social and political information … accessible

to all relevant stakeholders’.108 Although the GPs emphasised access to information as one of its core

procedural elements in due diligence assessment, we have decided to treat both as one core procedural

element because access to information is embedded in transparency. Access to information is another

dimension to the transparency discourse embedded in the general right to information.

101 . James Harrison, ‘Establishing a meaningful human rights due diligence process for corporations: learning from experience of

human rights impact assessment’ (2013) 31(2) Impact Assessment and Project Appraisal 107–117. 102 . World Bank, ‘Study on Human Rights Impacts Assessments – A Review of the Literature, Differences with other Forms of

Assessments and Relevance for Development’, Study commissioned by the Nordic Trust Fund and The World Bank, February

2013, 16. 103 . F Natour and JD Pluess, ‘Conducting an effective human rights impact assessment: guidelines, steps, and examples’, (Business

for Social Responsibility (BSR), March 2013), <https://www.bsr.org/reports/BSR_Human_Rights_Impact_Assessments.pdf>

accessed 2 August 2017. 104 . Adrian A Zuckerman, ‘Public interest immunity – a matter of prime judicial responsibility’ (1994) 57(5) Modern Law Review

703–725. 105 . United Nations (n 73) Principle 21(c). 106 . Stephen Williams and Andréanne Doyon, ‘Justice in energy transitions’ (2019) 31 Environmental Innovation and Societal

Transitions 144–153. 107 . Olga Lenzen and Dr Marina d’Engelbronner, ‘Guide to Corporate Human Rights Impact Assessment Tools’ (Aim for Human

Rights, Utrecht: Netherlands, October 2009), <https://commdev.org/wp-content/uploads/2015/06/Human-Rights-in-Business-

Guide-toCorporate-Human-Rights.pdf> accessed 10 August 2017. 108 . Ana Bellver and Daniel Kaufmann, ‘Transparenting Transparency‘Initial Empirics and Policy Applications’, Preliminary draft

discussion paper presented at the International Monetary Fund (IMF) conference on transparency and integrity, Washington,

DC: World Bank, 6–7 June 2005.

While many companies claim on various platforms including on their websites to have undertaken an

HRIA of their businesses, there are no documents available to the public on such HRIA process.109 For

instance, although one of the largest natural resource companies, Glencore states on its website that it

conducts risks assessment at crucial phases of project’s lifecycles, there is no published HRIA report or case

study on its website.110Sometimes, the HRIA process is undertaken by corporations for internal consumption.

The petroleum giant, British Petroleum had, for instance, conducted an HRIA of one of its projects in

Tangguh, in Indonesia but only made public a summary of the recommendations and conclusions of the final

report together with a response from the company.111 Again, one of the widely used risk assessment tool, the

Danish Human Rights Centre’s Compliance Assessment tool is mainly utilised by companies for internal

human rights assessment with the effect that the outcome reports remain unpublished.112Thus, these kinds

of human rights assessment tools would fail to meet the requirements of the GPs.

The non-availability of HRIA reports to the public prevents the monitoring or scrutiny of companies’

human rights performance. The findings, the methodology utilised, the assessment process and results aimed

at monitoring the legitimacy, accuracy and independence of the entire exercise, should be made public, to

strengthen the HRIAs process.113 Access to information does not stop at making the report public but extends

to quality and quantity of the information that is made publicly available.

The timing when the HRIA processes and findings were made public to right-holders, is crucial to access

to information. The Marlin Mine in Guatemala had a similar experience where the assessment from the

Compliance Advisor Ombudsman (CAO)114 of the International Finance Corporation and the Multilateral

Investment Guarantee Agency (MIGA) ‘found that much of the information disclosure and consultation took

place after the ESIA on the project was submitted or after permitting, and that at the time, sufficient

information was not available to allow stakeholders to be informed of the likely adverse impacts of the

project.’115 The Sipacapa communities had filed a complaint before the CAO on the environmental and social

impacts of the Marlin Mine, and the CAO published its report after reviewing the case in September 2005.116

5.2. Bodo oil spill case study: An examination with the DM-PACT C procedural

elements

The focus here is to utilise the DM-PACT core procedural elements to assess the Bodo OSI process to

identify the human rights concerns in the oil spill investigation process. The OSI process in the Bodo

community oil spill evidences a lack of due diligence, the first of the DM-PACT’S core procedural elements

in the HRIA framework. The company’s claim to have cleaned up the oil-contaminated site to international

best practice and standard was countered by the 2011 UNEP report that found SPDC’s clean-up in Ogoni to

be substandard. Due diligence required that the company should have assessed its human rights risks to know

where there are weaknesses; in this case, its policy on clean-up and remediation. The report noted that the

sites the company claimed to have cleaned had no difference to the area that was awaiting clean-up and

restoration.117 This paper note that due diligence failure is also applicable to the government’s regulatory

109 . J Harrison (n 101) 113. 110 . Glencore., ‘Our Approach: Our Group Environmental Policy Follows the Plan-do-check-act Method, available at

<http://www.glencore.com/sustainability/environment/our-approach/> accessed 20 September, 2017. 111 . International Council on Mining and Metals (ICMM), ‘Human rights in the mining and metals industry; Integrating human rights

due diligence into corporate risk management processes’, 2012, <http://www.icmm.com/website/publications/pdfs/3308.pdf>

accessed 3 August 2017. 112 . J Harrison (n 101) 113. 113 . Tarek F. Massarani, Margo Tatgenhorst Drakos, Joanna Pajkowska, ‘Extracting Corporate Responsibility: Towards a Human

Rights Impact Assessment’ (2007) 40(1) Cornell International Law Journal 136–69. 114 . Compliance Advisor Ombudsman (CAO) is a grievance mechanism of the World Bank’s IFC and MIGA that deals with

complaints from project-affected communities aimed at addressing the social and environmental impacts of the Bank’s funded

projects. 115 . On Common Ground Consultants (n 79) 48. 116 . Office of the Compliance Advisor/Ombudsman (CAO), ‘Assessment of a Complaint Submitted to CAO in Relation to the Marlin

Mining Project in Guatemala’, (CAO, IFC and MIGA, 7 September 2005) <http://www.cao-ombudsman.org/cases/document-

links/ documents/CAO-Marlin-assessment-English-7Sep05.pdf> accessed 2 October 2017. 117 . UNEP (n 67) 135.

agencies that failed to undertake a due diligence assessment of the clean-up and remediation policies of the

companies.

Reports reveal that oil companies operating in Nigeria have worked for several years without a reasonable

check on their operations.118 The inadequate inspection shows the lack of M&E from the oil companies.

M&E requires that duty-bearers subject their policies and projects to review and assessment preferably from

independent third parties to ascertain whether the strategy is receiving optimal implementation in addressing

identified human rights impacts. It follows that the company may have failed to conduct a proper check on

its pipelines and other installations. Thus, poor M&E weakens the practice by MNCs of declaring that an oil

spill resulted from sabotage or theft.

An examination of the Bodo oil spill investigation process also reveals that the DM-PACT core procedural

element of participation in the HRIA framework was not complied with by SPDC and the regulatory

agencies. While there was some form of involvement in the oil spill investigation process, it was restricted,

tokenistic, gender-biased and not meaningful. The HRIA process emphasises that participation should be

significant, and this means compliance with the free, prior, informed consent (FPIC) principle.119For a start,

it was not informed participation as participants who were selected chiefs and youths from the community

were without proper knowledge of the oil spill that was being investigated. The engagement is mostly elite-

based and not community-based because there is often the failure to consult with the genuine representatives

of the community as a few community members usually designated by the company, participate in the OSI

process.120

The participation was also restricted and tokenistic. The Bodo community claimed that although SPDC

clamped the leak on the 7th of November, they were not involved in the JIV report writing, and their chiefs

and youths were also not represented.120 The participatory process further failed to take into account

vulnerable and marginalised groups such as women because the representatives made up of youths and

chiefs were mostly male counterparts of Bodo community. They complain of exclusion in the JIV process.

To them, the oil companies should include women since they are highly vulnerable and are the ones

mainly engaged in the farming and fishing ensuring that there is food to eat for their families. The

exclusion of women from the oil spill investigation process has significant impacts on how the effect of the

spill is recorded and addressed and how compensation is paid as the latter is usually shared among male

members of the community, leaving the women out.

The experience of impacted local communities with MNCs engaged in oil and gas activities further

demonstrates a general lack of accountability on the part of the oil companies. Tort, nuisance, negligence,

and strict liability or the rule in Rylands v. Fletcher form the basis of the majority of the lawsuits in Nigeria.121

However, legal redress through domestic courts is mainly slow and delayed as a result of preliminary

objections and interlocutory appeals among other things. The SPDC v. Farah case,122 for instance, lasted about

twenty-four years. The delay getting environmental justice may have pressured Bodo community to seek

redress the United States, United Kingdom123 and The Netherlands, utilising extraterritorial regimes such as

the U.S Alien Tort Claims Act (ATCA) of 1789.124 A Dutch court, for instance, had for the first time in 2009

118 . World Bank, ‘Defining an Environmental Development Strategy for the Niger Delta’, Vol II, Industry and Energy Operations

Division West Central Africa Department, 25 May 1995; UNDP ‘Niger Delta Human Development Report’, Abuja: UNDP,

2006. 119 . FPIC means it is free from coercion or manipulation; done before any project is undertaken; all information about the project is

brought to the attention of communities; and having understood all about it, communities agreeing to the project; See, S Irene, ‘License

to Operate: Indigenous Relations and Free, Prior and Informed Consent in the Mining Industry’, Sustainalytics 2011,

<http://www.sustainalytics.com/sites/default/files/ indigenouspeople_fpic_final.pdf> accessed 11 April 2017. 120. Amnesty

International 2009 (n 23) 40. 120 . Amnesty International revealed this when it interviewed Kpoobari Patta, President of the Bodo Youth Council, May 2011; see,

Amnesty International 2009 (n 23) 40. 121 . SPDC Nigeria Limited v Tiebo [2005] 9 Nigerian Weekly Law Report (NWLR) (Part 931) 439 SC; SPDC Nigeria Limited v

Farah [1995] 3 NWLR 148; SPDC Nigeria Limited v Otoko [1990] 6 NWLR (159) 693. 122 . SPDC v Farah [1995] 3 NWLR 148. 123 . See, Bodo Community & Ors v SPDC [2014] EWHC 1973 (TCC) (ruling on preliminary objections); see also, HRH Emere

Godwin Bebe Okpabi and ors v Royal Dutch Shell PLC and SPDC of Nigeria Ltd [2017] EWHC 89 (TCC). 124 . The ATCA 1789 allows victims of gross human rights violations that are committed abroad to bring an action in U.S. federal

courts against those responsible such as the killing of environmentalists as was the case with the late Ken Saro Wiwa and eight

others with Shell alleged to be complicit in the murder.

declared itself competent to decide on an environmental pollution case for the Bodo community as a result

of the oil spill caused by Shell Nigeria (SPDC). Until recently, most oil companies including SPDC never

made provision of internal operational level grievance-mechanisms to deal with the human rights violations

complaints by local communities occasioned125 by the companies’ operations. State-based non-judicial

grievance mechanisms such as the National Human Rights Commission, Public Complaints Commission

(Ombudsman), and NOSDRA126 cannot be genuinely independent third-party neutrals because they are often

interested parties.

The OSI process is generally lacking in the collaboration or cooperation of affected right-holders and duty-

bearers. As stated already, local communities and the oil companies hardly cooperate in the OSI process.

The law, as stated, requires that other bodies such as government departments and agencies should participate

in the OSI process. This paper note that the State, with an obligation to foster cooperation, failed in its duty

to provide local communities with support in the form of awareness-raising, capacity building, and technical

assistance in the OSI process.

Interestingly, even when communities restrictively participate, they are sometimes made to sign an

incomplete JIV form, and they may not also be given any copy of the signed form. NOSDRA, however,

claims that they are often given copies of the JIV form. The reason for withholding JIV forms from

community members is not far-fetched. When community representatives are not satisfied with the

compensation or the process, the JIV form can serve as a vital tool for litigation. The withholding of JIV

forms from Bodo community representatives is contrary to transparency and access to information in the

HRIA framework.

There are further manifestations of the lack of transparency and access to information in the Bodo

community oil spill investigation. For instance, SPDC had wrongly recorded the start date of the oil spill as

5th of October 2008 while the original start date was 28th of August as the community had recorded and

notified the Ministry of Environment and NOSDRA of the spill immediately it occurred. The company had

also not correctly reported the volume of the 2008 oil spill in Bodo community to limit the extent of its

liability. The company’s JIV report had estimated the amount of the discharge to be 1, 640 barrels of crude,

but the specialist pipelines organisation, Accufacts assessed it to be between 103,000 and 311,000 barrels of

crude oil released as indicated on its video footage as proof.127 The second spill was estimated to be 2,503

barrels of crude, although there are independent reports.128 However, the JIV report reveals that the second

oil spill was higher than the first spill.130

There were further issues with access to information as the community claimed that they were left out and

not given a copy of the first JIVreport which they insisted on getting before signing the second JIV report.

This request was acceded to by SPDC on February 2009, which was over a month after the oil spill

occurrence. Access to information is not merely the making available of the data but also its timeliness. The

inconsistencies noted above from SPDC suggest the lack of transparency and access to information in the

OSI process.

6. CONCLUSION

This paper set out to examine the OSI regime in Nigeria by utilising the HRIA framework to identify the

flaws in the OSI process in the current practice and to assist in holding duty-bearers accountable to their

human rights obligations and responsibilities while empowering local communities as right-holders in the

OSI process. This paper found that oil spills impact on local communities’ right to work and earn a living,

right to food, right to water, entitlement to a healthy environment, right to health, and the right to life. It is,

therefore, important that the HRIA framework is mainstreamed into the OSI process to forestall further rights

125 . See for instance, Shell Global Memorandum of Understanding Model 5; and Shell Community Transformation and Development

Index (SCOTDI) launched in 2013. 126 . NOSDRA is mandated to ‘assist in mediating between affected communities and the oil spiller’ under the National Oil Spill

Detection and Response Agency (Establishment) Act, No 15 of 2006 (NOSDRA Act), Cap N157, LFN, 2004, section 19(1)(e). 127 . John Vidal, ‘Shell Nigeria Oil Spill ‘60 Times Bigger than it claimed’ (The Guardian, 23 April 2012),

<http://www.guardian.co.uk/environment/2012/apr/23/shellnigeria-oilspill-bigger> accessed 20 February 2014. 128 . Amnesty International (AI) and Center for the Environment, Human Rights and Development (CEHRD), ‘The True ‘Tragedy’:

Delays and Failures in Tackling Oil Spills in the Niger Delta’, London: Amnesty International, 2011, 33. 130. S Pegg and N Zabbey

(n 64) 394.

violations post-spill. In the Bodo case study, the OSI process complies more in breach of the DM-PACT’s

core procedural elements of the HRIA framework. The finding here is that the investigation process could

not help in decreasing the human rights violations that already took place as HRIA framework were not

followed to address human rights concerns.

The approach adopted in similar energy disasters lends credence to our HRIA framework. In both the

Deepwater Horizon and Fukushima disasters, Commissions of inquiries or investigative panels were set up

to ascertain the cause of the accidents and to determine among other things, the human rights impact of the

incidents. The Fukushima commission investigation included interviews, hearings and site visits. The

commissions received comments from the public, and all the meetings were open to the public to ensure

information disclosure.129 In keeping with procedural justice, our framework could be adopted to assist

regulatory agencies in Nigeria to take proactive measures in the OSI process to avoid further rights violation

post-spill.

The DM-PACT core procedural elements of the HRIA framework should be mainstreamed into policy,

legal, regulatory processes and management systems to protect human rights in the OSI process. As a result,

the concept of environmental and energy justice would be promoted by integrating due diligence, monitoring

and evaluation, participation, accountability, collaboration, and transparency and accountability in the OSI

process.130 Thus, when an oil spill occurs, human rights will be safeguarded.

Closely linked to human rights, is environmental and energy justice and as O. Fagbohun noted, ‘society

must stay alert to fresh possibilities to achieve environmental justice’,131 and this includes human rights.

Our framework ensures participation in energy decision making and restorative justice where there is an

environmental wrong, and it will also guide accident investigation to forestall further rights infringements

in the energy sector in general.

129 . The National Diet of Japan, ‘The official report of the Fukushima Nuclear Accident Independent Investigation Commission (n

14). 130 Stephen Williams and Andréanne Doyon (n 106) 148. 131 Olanrewaju Fagbohun, Jurisdiction of Nigerian Courts in Environmental Matters: a Note onShell v Abel Isaiah’

(2006) 24(2) Journal of Energy and Natural Resources Law 209; Olarenwaju Fagbohun, ‘The Imperative of

Environmental Restoration Due to Oil Pollution in Nigeria’ (2007) 18 Stellenbosch Law Review 350.