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ABSTRACT

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

CHAPTER ONE

INTRODUCTION

1.1 Background to the Study
The globalization of law has engendered the development of international norms and
institutions for the protection of human rights in our century than at any previous point in
human civilization. The outcome is an international recognition that human rights ought to be
honoured as a basis for human development, democracy and good governance. Subsequently
the United Nations Organization (U.N.O), the International Court of Justice (I.C.J), the
International Criminal Court (I.C.C), the African Union, is all committed to the enthronement
of human rights.
Paradoxically, the attainment of human rights in the less developed countries,
particularly in resource rich African countries seems to be a contemporary utopia. This is borne
out of the fact that the continuous outbursts of conflicts are immense and monumental, its
impacts have led to the loss of about $300b within the last three decades, and it is unabated
(Volman, 2003). This study takes interest in militarized commerce as a form of human rights
infringement and in doing so it seeks to focus on the Niger Delta. For instance, the killing of
80 unarmed villagers over the protestation of oil spillages in Umuechem village in Rivers State
by the Nigerian security forces in 1990 is well documented (HRW, 1999:112).
Also, in response to a non violent campaign in opposition to the destruction of their
environment by oil companies, the Nigerian security forces attacked and destroyed several
Ogoni villages and executed acts of extra judicial killings of human rights activists Ken Saro
Wiwa and other Ogonis in 1995 (Carew, 2002). Similarly, following a protest against SPDC
over a badly malfunctioning flare in Iko, Akwa Ibom State led to the burning of fourty houses
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by the Mobile police (ERA, 1998). On the 19th of April 1999, a team of naval and army
personnel attached to the Nigerian Agip company (Brass terminal) killed 8 persons who had
shut down oil production facilities. Also killed were seventeen youths of Ikebiri and Olugbobiri
community in 2001 by the Agip security personnel.
Also, following the Kaiama Declaration in 1998, soldiers were deployed to Kaiama. In
the events that followed several persons were killed, injured and maimed and properties
(including buildings) were destroyed and looted. Federal troops also invaded Odi town of
Bayelsa State in November 1999 and completely destroyed it as a fall out of the killing of eight
police officers at Odi by some of the youths (This Day, 1999; Bayelsa Voice, 1999). In the face
of government denial that any abuses took place and failure to undertake any criminal or other
investigation with a view to bringing those responsible to account, private individuals have
brought civil suits against the government.
In February 2000, an application to enforce fundamental rights was lodged in the
Federal High Court, Port Harcourt, on behalf of the Odi community, seeking ₦1 billion (U.S.
$7.7 million) damages and other relief. The government failed to file any defense to the
application or to appear in court to respond to the various applications made on behalf of the
plaintiffs as the case has proceeded. In July 2002, nine women from Odi filed a suit in the
Federal High Court, Port Harcourt, seeking ₦19 million (U.S. $146,000) compensation from the
federal government for rape, torture, and emotional trauma suffered during the invasion. The
government filed a defense denying all the allegations (HRW, 2002:21).
In other cases people were beaten and arbitrarily detained for lengthy periods for
simply attempting to raise grievance with the oil companies, for instance, the case of Egbema
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in Imo state in 1999; Obagi, and Rumuobiokani, Rivers state in 1995 and in Brass, Nembe
Creek, Bayelsa state (HRW, 1999; HRW, 1995).
In November 1999, a conflict involving Choba community and Wilbros Nig. Ltd led to
the destruction of properties and the raping of women by the military operatives (Ogonor,
2000). In February 1999, Human Rights Watch documented an incident in which Soldiers used
Chevron facilities (Helicopters and Boats) to launch attack in two communities in Delta state,
Opia and Ikenyan, killing at least four people and burning most of the villages to the ground,
for daring to raise a protest against Chevron over environmental degradation (HRW, 1999).
Similarly, in 2005, 80 percent of houses in Odioma community in Bayelsa state were
completely destroyed and seventeen people were reportedly killed and two women raped when
soldiers raided the town in a failed attempt to arrest members of an armed vigilante group
suspected to have killed 12 people including 4 local councilors. Members of this group were
reported to have been recruited by a sub-contractor of Shell’s subsidiary in Nigeria and to be
responsible for security in an area where oil exploration was being conducted, despite their
alleged criminal record (Amnesty International, 2005).
In January 2002 in Liama, Bayelsa state, navy personnel also responded to the seizure
of boats and employees of an oil service company working for Shell, not by arresting those
alleged to be responsible and handing them to the police for investigation and prosecution, but
by carrying out a reprisal raid on the abductors‘ village, razing dozens of homes to the ground
and killing and destroying twenty to thirty houses (HRW, 2002). Similarly, in 2009, the
Nigerian security operatives (J.T.F) launched an aerial bombardment in the communities of
Kunukumah, Oporoza, Kurutie and Okerenkoko, all in Gbaramatu kingdom of Delta state; in
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which thousands of innocent unarmed people were killed and several others were displaced in a
campaign against militants ( Insider weekly, 2009).
This phenomenon is aptly described as militarized commerce (Forcese, 2001; Watts,
2004). In conceptualizing militarized commerce, these scholars posit that it involves the act of
enlisting military personnel in company‘s payroll, importing arms and providing combat
infrastructure and ancillary services to the country‘s armed forces attached to corporation‘s
facilities, to checkmate protesters. This study therefore refers to militarized commerce as the
sponsoring of state coercive apparatus (military police, navy and the army) and international
and local private military organizations (PMCs) by transnational oil corporations to protect oil
facilities as well as the attack of local communities whose members engage in protest against
environmental degradation. Amnesty International‘s (2009) empirical study on Nigeria
revealed that oil transnational corporations have exacerbated conflict and violated human rights
for over 50 years in Nigeria‘s Niger Delta. These violations culminated in violent destruction
and the sacking of entire communities and villages akin to genocide.
However, Victims of human rights infringement are often unable to obtain redress as a
result of the limited capacity of the domestic legal system, the privatization of the state and its
dependence on foreign capital. Frynas (2001) findings showed how oil transnational
corporations tie up legal cases in Nigerian courts for 10 to 15 years and how the Nigerian State
(rentier state) is biased in favour of oil interest and thus restrict legislation against oil
companies.
In Jonah Gbemre v. SPDC, the plaintiffs filed a petition to stop gas flaring in the
Iwerekan community in Delta state. While the Federal High Court ruled in favour of the
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plaintiffs, SPDC violated the court order and gas flaring is still subsisting in Iwerekan
community.
Several cases of court disobedience by oil transnational corporations in Nigeria abound
which account for human rights infringement. While, international law seeks to grapple with
this obstacle, it is however, limited by its state centric nature. Accordingly, the United States of
America through its legal system has attempted to overcome this short coming through the
application of the Alien Torts Claims Act.
The Alien Torts Claims Act is a section of the United States statutory law which
provides that: ―the District Courts shall have original jurisdiction of any civil action by an alien
for a tort only, committed in violation of the law of nations or a treaty of the United States,‖ 1
stat. 73, 77 (1789); ATCA – 28 U.S.C§1350 (2000). This provision has enabled foreign citizens
to bring civil cases to the U.S courts for egregious human rights abuses committed outside the
United States, thus elevating civil litigation to the status of universal jurisdiction. Whereby, a
third party country could prosecute suspected human rights violators.
The motivation and legislative history of the Alien Torts Claim Act was to provide a
judicial forum to foreign ambassadors in the United States (Shaw, 2002:1364). This can be
deduced from the ―Marboise affair‖ where a French diplomat, Franscis Barbe Marbois was
attacked by a French noble, Chevalier de Longchamps in the city of Philadelphia in 1784;
Longchamps was tried and sentenced to about 2 years in jail, as well as an imposition of a fine
of 100 French Crowns to the Commonwealth of Pennsylvania, under criminal charges for his
violation of international law. The notoriety of the incidence triggered the U.S. congress to
enact the Alien Torts Statute in the judiciary Act of 1789 (Diskin, 2005). Also, the enactment
of this statute was intended to be a ―badge of honour‖ for the young United States, indicating
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that the country was ready to shoulder a perceived national duty to enforce international law as
it relates to individual conduct (Burley, 1988: 475 in Shaw, 2002: 1364).
After the enactment of the statute it remained in disuse for two centuries (Castor, 1986);
until it was invoked in the landmark case of Filartiga. The plaintiffs alleged a state murder of a
family member. Under the Alien Torts Claims Act, the court found that multilateral treaties,
domestic prohibitions and United Nations Declarations on human rights demonstrates
consistent adherence to the prohibition of official torture and held that the Filartiga‘ claim was
properly brought under the Alien Tort Claims Act (Filartiga v. Pena-Irala). The Filartiga‘s
legal victory over the Paraguan state led to the first wave of over 100 litigation cases mainly
against former dictators and military officials who escaped to the United States after the
elimination of their regime.
The Court of Appeal‘s decision in 1995 for the second circuit in kadic v. Karadzic
which held that the reach of ATCA extend beyond state parties to private actors triggered the
second wave of litigation targeted at transnational corporations for their complicity in egregious
rights violations; notable defendants in these lawsuits include the oil corporations, Chevron
Texaco, Occidental, Royal Dutch Shell, Talisman and the mining companies Freeport-
Mcmoran, Newmont, Rio Tinto and the Southern Peru copper corporation, others are Coca-
Cola, Fresh Del Monte Produce, The Gap, Daimeler- Chrysler, Ford, Dyn Corp and Pfizer
(Diskin, 2005).
A significant ATCA case involved petition by Nigerian citizens in the Niger Delta
against Royal Dutch Shell Petroleum Company. In Wiwa v. Royal Dutch Shell Petroleum
Company, the plaintiffs alleged conducts that violates rights as secured under international law
and which therefore constitute actionable conduct under the Alien Torts Claims Act, with
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respect to summary execution, crime against humanity, torture, cruel, inhuman and degrading
treatment, arbitrary arrest and detention. The court in Wiwa v. Royal Dutch/Shell applied all
the necessary ATCA mechanism and found that the plaintiffs effectively alleged human rights
violations under international law which are actionable under the Alien Torts Claims Act. It is
therefore, against this background that this study sets out to examine the effect of the Alien
Torts Claims Act on infringement of human rights in Ogoniland of Nigeria‘s Niger Delta.
1.2 Statement of Problem
Nigeria is among the largest producer of oil in the world. Oil benefit is seen to account
for about 95 percent of Nigeria‘s foreign exchange earnings and over 80 percent of federal
government receipts (CIA, 2010). This shows that the oil industry has brought enormous
wealth to the Nigerian nation. However, Obi (1997) demonstrates that state dependence on oil,
heightens its intensification and extraction, such that it leads to ecological degradation and if it
is associated with social and political factors, it inevitably triggers environmental conflict.
Various dimensions of militarized commerce characterized by pervasive armed
conflicts has engulfed the Niger Delta region for several years now and these conflicts have
assumed triangular form, for instance oil producing communities are engaged in conflict with
the oil corporations, also the communities are engaged in conflict with the Nigerian state and
the regions are also interlocked in conflict with one another (Zandvliet and Pedro, 2002).
Initially, these conflicts were peaceful as communities either went to court to seek redress or
embark on peaceful protest to call attention to development assistance and environmental
degradation issues; however, this was met by limited response of the oil companies and worst
still the Government response was the deployment of military personnel to crush popular
dissent.
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This is attested to by the Umuechem massacre in the East of Port Harcourt, Rivers
State, where the Nigerian security forces destroyed 495 houses and killed 80 unarmed
demonstrators in October 30th and 31st, 1990; the Ogoni crisis, detentions and extra judicial
executions of MOSOP activists by the task force and other security involvement in violent
clashes between Ogonis and neighbouring ethnic groups in 1995; the genocides in Odi village
in 1999, in Kaiama 1998; and Odioma in 2005, Bayelsa State (HRW, 1999; Amnesty
International, 2004); and the Gbaramatu massacre in Delta state in 2009 by the Joint Task
Force (Insider Weekly, 2009: 20-25).
To resist the destructive military might of the state, armed confrontation was adopted by
the youths as a defensive mechanism (Peterside, 2007; Cesarz, Morrison, and Cooke, 2003).
This new method also involved the kidnapping of oil companies personnel‘s for ransom
particularly, expatriate staff and in some cases the siphoning of crude (Ikelegbe, 2005; 2006).
Idemudia (2009) opines that unlike the early 1990‘s when government had a monopoly of
violence, recent development had shown that with increase in fiscal revenue resulting in
government allocation, Oil Company‘s spending and bunkering activities coupled with the
geographic terrain, has made armed protesters more than capable of meeting governmental
force with force.
Cesarz, et al (2003) asserts that such proceeds are usually used in the purchase of rocket
propelled grenades, AK-47 assault rifles, machine guns, satellite phones and speed boats used
to confront the state, oppose other groups and to seek political patronage. Obi (2008) noted that
armed struggle between protesters and security forces led to an all out attack targeted at Shell,
Agip and Chevron leading to a shut in of 27 percent or 675,000 bpd out of Nigeria‘s estimated
daily production of 2.4 million bpd in 2007 alone, while the figure rose from 600,000 to 1
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million barrels of oil per day in January 2008. This loss in revenue also came along with its
consequences; armed soldiers and naval personnel attached to oil companies attacked
communities that resembles the quelling of a rebellion, subsequently people were killed,
properties destroyed, women raped, some were denied their freedom and economic activities
were stagnated.
The effect of this indiscriminate attack suggests an infringement on the people‘s
fundamental rights (Briggs, 2002; Kemedi, 2003; Okonta, Kemedi and Watts, 2004).On the
other hand, the soldiers and naval personnel also suffered significant losses. These include
severe injuries, loss of lives and combat equipments (Insider Weekly, 2009:31, 32; Newswatch,
2009:12-21). Maier (2007) contend that ―about a thousand people lose their lives annually in
bloody encounters between militias, communal and ethnic conflicts‖. For the nation‘s security
forces to record high casualty figures in peace time is alarming and grave to Nigeria‘s defense
industry. This is perhaps the motivating factor why the late President, Umaru Musa Yar‘Adua
declared an unconditional amnesty to all fighters in the region to end their campaign and
embrace a peaceful dialogue.
Militarized commerce in the Niger Delta and its attendant rights violations has
provoked remarkable scholarly debates geared towards discovering its trajectories and
implications. Empirical literature thus posits potent theoretical models, these includes amongst
others, the ―political economy of war thesis,‖ which demonstrates that war provides an
economic incentive for elites and warlords to loot the resources of their country. It highlights
the role transnational corporation‘s play in the logic of violence and human rights in
guaranteeing a steady flow of revenue stream to warring factions, thus creating interplay
between greed and grievance (Collier and Hoeffer, 1998; Berdal and Malome, 2008; Collier,
10
2000; Collier and Hoeffer, 2001; Bellentine and Sherman, 2003). This also has a similar
coloration with the resource curse theory.
The works of Auty, (1993); Ross, (2001; 2003); Billion, (2001) and Reno, (2003) offers
a robust debate on the resource – cause paradigm. This theory is anchored on the paradox of
plenty versus poverty and the conflict nexus in African countries. This thesis is used in
explaining why in spite of Africa‘s rich endowment it still remains poor and conflict ridden.
Bayart, Ellis and Hibou, (1998); Chabal and Daloz, (1999, 2006); Reno, (2003); highlights the
weakness, inconsistency and contradiction of the African state system which is articulated in
their ―Neo-patrimonial thesis‖. Other works like Osaghae (1995); Ukeji, (2001); Ifeka, (2001);
Ikelegbe, (2005); Omeje, (2004); Peterside, (2007); Ukaogo, (2009) and others emphasizes
Nigeria‘s skewed federalism which adds to the ―fiscal federalism theory‖ and the ―nested
theory of conflict‖ which locates conflict in the nature of the system (Idemudia and Ite, 2006;
Obi, 2008; Idemudia, 2009).While other studies lean towards the context of environmental
degradation caused by oil exploitation (Naanen, 1995; Okoh, 1996; Olojede, 2000; Williams,
2002; Jike, 2004; Ibeanu, 2008).
The empirical findings on violations of international law have essentially highlighted
international instruments that guide the activities of oil corporations in Nigeria‘s Niger Delta
(Shaughnessy, 2000; Feeney, 2002; Luvhengo, 2006); and that the problem of oil corporations
and militarized commerce in the Niger Delta is tied to the linkages between oil corporations,
militarism and anti-democratic politics (Eaton, 1997; Frynas, 2000; Reno, 2000). More so,
emphasis is equally placed exclusively on structural systemic internal and external pressures
(Okonta, Kemedi, and Watts, 2004; Idemudia and Ite, 2006; Obi, 2008).
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Arising from the foregoing is the obvious fact that there has not been adequate
treatment of the enforcement of international mechanisms. Also, the effect of the military
alliance between the Nigerian government and the government of the U.S on the capacity of
Nigerian government to enforce the liability of oil Corporations for human rights infringement
is not yet brought into clear focus. More importantly, not much scholarly effort is focused on
the implications of the U.S. Alien Torts Claims Act in addressing human rights infringements
in Nigeria‘s Niger Delta. Consequent upon the foregoing, attempt is made to transcend the
deficiencies of the existing inquiries to address the following research questions:
(1) Do international regulatory mechanisms on human rights and NGO‘s activities reduce the
incidence of human rights infringement in Ogoniland of Nigeria‘s Niger Delta?
(2) Does the military treaty between the Nigerian government and the government of the
United States undermine the capacity of the Nigerian government to enforce the liability of oil
corporations for human rights infringements in Nigeria‘s Niger Delta?
(3) Does the compensation provided by U.S. Alien Torts Claims Act reduce the pressure of
opposition against the commercial activities of oil corporations in Ogoniland of Nigeria‘s Niger
Delta?
1.3 Objectives of Study
The broad objective of this research work is to examine the implications of the
enforcement of U.S. Alien Torts Claims Act on human rights infringement in Ogoniland of
Nigeria‘s Niger Delta. The study will specifically focus on the following: The study examines
whether international regulatory mechanisms on human rights and NGO activities reduce the
incidence of human rights infringement in Ogoniland of Nigeria‘s Niger Delta.
12
The study also examines whether the military treaty between the Nigerian government
and the government of the United States undermine the capacity of the Nigerian government to
enforce the liability of oil corporations for human rights infringement in Nigeria‘s Niger Delta.
Similarly the study examines whether the compensation provided by the U.S. Alien Torts
Claims Act reduce the pressure of opposition against the commercial activities of oil
corporations in Ogoniland of Nigeria‘s Niger Delta.
1.4 Significance of Study
The significance of this research is aimed at satisfying a theoretical as well as a
practical need. Theoretically, the findings of the study will contribute to the existing body of
empirical knowledge and will help illuminate on the character of militarized commerce. It is
pertinent to note that most elites are ignorant of militarized commerce as a corporate policy
adopted by transnational oil corporations, thus holding tenaciously to belief and perceptions
that are out of tune with reality.
Although, recent literature and civil society‘s advocacy has brought an awareness of
the deep connection between oil transnational corporations and militarized commerce in the
Niger Delta, which earlier works had hitherto ignored. However, most intellectual works tends
towards a state centric solution; this approach leaves a gap which this study intends to bridge.
With the application of social science methodologies to legal jurisprudence theoretical issues
are brought to bear on Alien Torts jurisprudence and militarized commerce in Nigeria‘s Niger
Delta. We therefore anticipate that the findings of the study will fill this information gap. It will
also provide scholars a context for further research on human rights and Alien Torts
Jurisprudence.
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On the practical aspect, in June 2006, the United Nations Office of the Special Adviser
on Africa (OSAA) convened an expert group conference on ―Natural Resources and Conflict in
Africa: Transforming a peace liability into a Peace Asset‖ in Cairo, Egypt from 17th to 19th.
Significant amount of resources had thus been expended on finding solutions to conflict
resources and the improvement of the governance of natural resources management in post
conflict countries in Africa.
Thus the findings of the study would therefore be of immense benefit to regional
African communities like the Economic Community of West African States (ECOWAS); South
African Development Communities (SADC) and the African Union (A.U), especially its socioeconomic
development framework, NEPAD, whose vision is anchored on peace and
development for the African region. Similarly, the findings will provide the much needed
intellectual resources for regional research institutes whose vision is to see a violent conflict
free Africa that is well equipped to compete economically, socially and technologically in the
global market. Also, the study will be of relevance to development agencies and
nongovernmental organizations, both local and international on dealing with issues of oil
conflict.
The findings of the study would also benefit the different layers of government in
Nigeria, especially, the federal government, whose intervention policies created, several
development agencies. The research findings will therefore help policy makers to adopt the best
policy option and operational officers to effectively implement the schemes. In addition it will
help foreign governments and their agencies appreciate the need for successful collaboration in
eradicating militarized commerce in African countries and the rest of the developing world so
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as to achieve global peace. It will also help transnational corporations to see the need to balance
profit with ethics. The findings of the work will also be of relevance to civil society.
1.5 Literature Review
This study explores Alien Torts jurisprudence and militarized commerce with a specific
focus on the Nigerian government and its relationship with global oil corporations and how this
relationship impacts on the Niger Delta region. In this vein, the literature review articulates the
findings of scholars on the following research questions:
(1) Do international regulatory mechanisms on human rights and NGO activities reduce
the incidence of human rights infringement in Ogoniland of Nigeria‘s Niger Delta?
(2) Does the military treaty between the Nigerian government and the government of the
United States undermine the capacity of the Nigerian government to enforce the liability
of oil corporations for human rights infringements in Nigeria‘s Niger Delta?
(3) Does the compensation provided by the U.S. Alien Torts Claims Act reduce the
pressure of opposition against the commercial activities of oil corporations in
Ogoniland of Nigeria‘s Niger Delta?
Do international regulatory mechanisms on human rights and NGO’s activities reduce
the incidence of human rights infringement in Ogoniland of Nigeria’s Niger Delta?
The Niger Delta region houses a vast amount of oil and gas deposits, which accounts for
the wealth of the Nigerian nation (CIA, 2010). It is her natural based resources that have
attracted foreign oil corporations into the Nigerian soil. It is estimated that there are 606 oil and
gas fields in the Delta, 355 onshore and 251 offshore, of which 193 were producing in 2002
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(Nigeria oil Handbook and Review, 2002).This makes Nigeria, one of the largest oil producers
in Africa.
Oil exploration is carried out by a joint venture arrangement between Nigeria,
represented by the Nigerian National Petroleum Corporation (NNPC) and 5 other major
American and European oil corporations. Actual production of oil is carried out by; Exxon
Mobil owned by the United States, Chevron Texaco also from the United States, Royal Dutch
Shell, owned by the Netherland and United Kingdom, Agip an Italian based Oil Company and
TotalFinaElf, a French oil company (www.nigerianoil-gas.com/upstream/index.htm).
What is publicly known is that oil accounts for about 95 percent of Nigeria‘s foreign
exchange earnings and 80 percent of all budgetary revenues, which amounts to nearly $20
billion annually or about $54 million daily (Ibeanu, 2008:5). What is perhaps unknown is that
the process by which oil is extracted and distributed deals a deadly blow to not only the ecosystem
of the Niger Delta, but also its social fabric. Oil exploitation has cost the Niger Delta its
environment, its fresh water, its fresh air, its agriculture, and its people‘s right to subsistence
and security (Eaton, 1997; Carew, 2002).
Okonta and Douglas (2001:92-94) in an empirical study noted that, ―ever since
commercial oil production commenced in 1958 in Oloibiri town of Bayelsa State, in the Niger
Delta, the industry is characterized with multiple oil spillages and other environmental
incidents; reiterating that, drilling for oil takes four stages; preparing the drilling site,
exploration drilling, production testing and transport which involves the cutting down of trees
and all other vegetation which invariably means expelling and killing the animal species
endemic to that habitat‖. Construction of canals to improve mobility to oil fields often makes
saltwater to flow into fresh water zones which kills plants, destroys drinking water and fresh
16
water ecological system, and apart from causing severe flooding of villages and farm lands, it
increases access to new areas previously inaccessible, thus aggravating illegal logging
activities (UNDP, 2006:180).
The construction of oil pipelines renders agricultural lands economically useless and
unproductive. In 1996, SPDC alone had 96 oil wells connected by pipelines hooking up 6 flow
stations (CLO, 1996:6). This invariably indicates land displacement and economic dislocation
associated with oil production; for instance, communities in Ohaji/Egbema local government
area in Imo state disclosed to Amnesty International, that pipelines associated with three oil
companies covered a great deal of farmland in the area which reduced the communities
farming activities (Amnesty International, 2009). Another practice associated with the oil
transnational corporations is gas flaring. Gas flaring takes place 24 hours a day all year round.
Robinson (1996) noted that ―gas flaring has been the most constant environmental damage
because in many places it has been going on 24 hours a day for over 35 years . . . it affects plant
life, pollutes the air, pollutes the surface water and as it burns; it changes to other gases which
are not very safe. It also results in acid rain . . .‖
The harmful effect of gas flaring is well documented by both indigenous and foreign
environmental advocates, yet, Nigeria flares 75 percent of its gas, which far exceeds any other
country‘s permissible limit (Ashton-Jones et.al, 1998). And as Anderson (1996) pointed out,
―1000 (SCF) standard cubic feet of gas is produced with every barrels of oil on an average,
which implies that producing 2.0 million barrels per day results to flaring 2.0 billion standard
cubic feet (SCF) of associated gas per day.‖ In the year 2000 alone, 95 percent of natural gas
was flared in Ogoniland, a small section of the Niger Delta, compared to 0.4 percent flared in
17
the whole of the United States (Khan, 1996: 162; Essential Action and Global Exchange,
2000).
A study conducted by Environmental Rights Action and the Climate Justice
Programme, on the human health effect of exposure to pollutant emissions from gas flares on
the citizens of Bayelsa State in the Niger Delta revealed that there are seventeen onshore flow
stations which flares gas and that exposure to emissions from gas flare such as (particulate
matter) is causing at least 49 premature deaths, 4960 respiratory illness among children and
120,000 asthma attack each year (ERA/CJP, 2005:24, 25). The findings of the study also
showed that gas flaring releases additional pollutants such as sulfur dioxides, dioxins, nitrogen
oxides, toluene, xylene and hydrogen sulfide which cause other serious health effects that are
not quantified in the analysis. It noted that the statistics is frightening, considering that gas
flaring takes place in numerous flow stations in other Niger Delta communities outside Bayelsa
State (ERA/CJP, 2005:24, 25).
Apart from damaging community health and livestock the effect of gas flaring is also
felt in other areas, for instance, at Utapele flow station on the Atlantic coast near Iko village in
Akwa Ibom State, a flare was sited too low so that sea water flooded the flare pipe at high tide,
vaporizing the salt and shooting it over the village. Corrosion of the roofs in Iko was shown to
be faster than in other areas, in 1995 it was reported that SPDC closed the flare at Utapele after
environmentalist issued a report on its effect (ERA, 1995). In Ebocha, Rivers state, community
members complained of black oil dust collecting in people‘s homes and on clothes and food.
They claimed that the roofs of houses are subject to accelerated rusting because of acid rain
associated with flares. Similar reports of the impact of gas flaring have been made by other
communities (Amnesty International, 2009).
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The contention by farmers that gas flaring affects their crop yield, by killing vegetation
around the flared area which suppressed the growth and flowering of some plants and the
reduction of agricultural products is highlighted in Salau‘s findings that gas flaring results to
about 100 percent loss in yield in all crops cultivated about 200 meters away from Izombe
station ( a flare site), 45 percent loss for those about 600 meters away and about 10 percent loss
in yield for crops about one kilometer away from the flare (Salau, 1993:19-22).
This also supports Ibaba‘s (2001:32) findings that ―those plantains around gas flaring
areas ripe faster than usual, thereby compounding storage problems. This is true of Ogboloma,
Akenfa, Oporoma, Otuasega and Onyoma communities in Bayelsa state, Ikobi and Oben in Edo
state as well as Erhoike and Uzere in Delta state‖. Although, the government has announced
deadlines to end gas flaring, it is still on record that in Nigeria, oil corporations flare more gas
than in any other country in the world, largely due to government reluctance to impose
legislation on oil corporations. Also, Okonta and Douglas (2001:97) reiterated that:
More gas is flared in the course of Shell‘s operation in Nigeria
than in the world where the multinational is involved in oil
exploration and production activities. This is so because western
oil companies operating in Nigeria find it economically expedient
to flare non associated gas right there on the spot in the flow
stations rather than incur the expenses of putting in place
facilities to re-inject the gas back into the wells or collect it for
commercial use. . . as a result the roofs of houses are severely
corroded, the heat generated by the gas flares lead to reduced
crop yield and the air they breathe is severely polluted leading to
health problems. The constant noise and burning light is such that
they no longer know the difference between day and night.
Additional effect of gas flaring in Nigeria is that it contributes to the total emission of green
house gases, and why gas flaring has not abated despite the huge waste of resource and its
externalities, studies attribute this to finding its root in racism (Barnett and Muller, 1974; ERA,
19
2005: 5). Other studies indicate that the financial penalties have been so low that they hardly
constitute a deterrent (UNDP, 2006). Oil spillages also constitute a major menace
characterizing oil exploration in the Niger Delta. Its effect are devastating than one could
imagine. Apart from the recent cases of deliberate vandalism or oil theft, the largest bulk of oil
spillages arise as a result of poor maintenance of infrastructure, equipment failure during
processing at refineries and corrosion of oil pipes (Amnesty International, 2009:14, 15). The
bulk of SPDC‘s production facilities especially its pipelines are rusty and obsolete; while it‘s
Shell Nigeria‘s stated policy to replace flow lines in swampy areas every ten to fifteen years,
presently there is backlog of older pipelines with high leakage frequencies, as a result of this
neglect, spillage is a regular occurrence in the Niger Delta (Okonta and Douglas, 2001:92-94).
From 1982 to 1992 the company has recorded 1626000 gallons of oil which was spilt
from the company‘s Nigeria‘ operations in 27 separate incidents; this is despite the fact that
many of such spillages are not recorded (CLO, 1996:4). In the same vein, the World Bank
findings showed that hydrocarbon pollution in Ogoniland water was sixty times more than US
limits. This demonstrates that Shell Nigeria operates a double standard, given the fact that Shell
drilled for oil in twenty-eight different countries during the same period (Cayford, 1996;
Carew, 2002).This also account for Shell‘s refusal to allow independent environmental audits
which is the standard practice adopted by oil transnational corporations in the industry (Carew,
2002).
UNDP (2006:181) estimated that a total of 6817 oil spills occurred between 1976 and
2001 with a loss of approximately three million barrels of oil, with approximately six percent
spilled on land, 25 percent in swamps and 69 percent in offshore environment. An oil spill
involving Texaco facility in January 1980 spewed at least 200000 barrels of oil (8.4 million
20
U.S Gallons) into the Atlantic Ocean that destroyed 340 hectares of mangroves (ERML,
1997:96). Also, on 1st August, 2004 there was a spill at Chevron Ewan oil field near Ubale
Kerere, along the coastline in Ondo state, some communities, including the Igo, Awoye, Odun-
Oyinbo, Ubale, Kerere, Ogungbeje and Yoren, were affected. Fishing grounds were devastated.
As fishing is the main source of income, the people were compelled to demonstrate to draw
public attention to their situation (Sogbon, 2005 cited in UNDP, 2006:182).
On January 12, 1998, a major spill of more than 40000 barrels of crude (1.7 million U.S
Gallons) leaked from the pipeline linking Mobil‘s Idoho platform with Qua-Iboe onshore
terminal in Akwa Ibom; and also a spill of 20000 barrels (840000 U.S Gallons) also occurred
from Shells Jones Creek flow station on March 27, 1998 in Delta State in the brackish water of
the mangrove forest destroying the entire fishing economy (Human Rights Watch, 1998).
According to HRW (1998), oil leaks are usually from high pressure pipelines and therefore,
spurt out over a wide area destroying crops, artificial fish ponds used for fish farming,
economic trees and other income generating assets. Even a small leak can thus wipe out a
year‘s food supply for a family; with wiping out income from products sold for cash, the
consequence of such loss of livelihood can range from children missing school because their
parents are unable to afford fees to virtual destitution.
Some major spillages are the Ebubu spill (1969/1970), the oil blow out well 11 at the
Bori oil field which affected the inhabitants of K-Dere (1970), the oil spillage at Yorla, in
August 1985, the Funiwa oil well blow out in 1980, the Jones creek spillage in 1998, the
Ogbodo spill, 2001 in Rivers state, the Rukpokwu oil spill in 2003. The case of the Ebubu oil
spill, demonstrates that oil pollution also has long time effect. A study published in 1992
revealed that the impacted site has still not recovered after over twenty years of the spillage
21
(Obot, et al, 1992:149-156). Aside from the miseries of oil pollution, another major problem is
that of inadequate compensation and the refusal or negligence in remediating the environment.
Okoko and Ibaba (1998:62) disclose that:
An oil spill which occurred in Akenfa and Ogboloma
communities between September and October 1995 was not
cleaned up until December of the same year. This inevitably
increased the impacted area and thus created more damage to the
environment. In some instance, particularly in the riverrine
communities, the spilled oil is not cleaned at all by the
contractors; it is left for the benevolence of the tidal waves which
carry the crude oil off the river and into the mangrove forest and
other creeks or river far distant from the point of spillage.
Consequently, the marine lives in the affected area have been
destroyed as in Bonny, Oporoma, Nembe, and Ogidigben among
others.
This also corroborate the report of Amnesty International, that in 2008, there were at least 2000
sites which the government authorities‘ and oil companies accept that needed to be remediated
(Amnesty International, 2009:32) Clearly, the natural environment upon which the people
depend for economic survival has been destroyed by the activities of oil transnational
corporations. The result is conflict between the communities and the oil companies. Though
while contending that they should not be obligated to provide developmental amenities, the oil
transnational‘s claim to spend huge amount of money on oil community‘s; for example, from a
level of $300,000 in 1989,
According to Shell, the community assistance budget rose to $7.5 million in 1993 and
more than $36million in 1996 and during 1997. The company claimed it provided 71 classroom
blocks, thereby putting a roof over the heads of more than 12,500 children; sponsored 252
science teachers in 51 schools in rural areas which these teachers would otherwise have
avoided; played a major role in providing training, organizing logistics, supplying syringes,
22
needles and vaccines for the immunization of more than 300,000 children against childhood
disease and donated drugs to treat outbreaks of cholera in Ogoniland and in Bayelsa State
(SPDC Annual Report, 1996).
Mobil also claimed to have spent an average of $8 million annually on community
development projects between 1994 and 1997 ((HRW, 1998). Chevron, also report that
between 1990 and 1997, it spent approximately $28 million on community development and
other assistance to its host communities as agreed to by the communities and requested of us by
the people. According to Chevron, the project included ten blocks of six classrooms each, fiftythree
bungalows for teachers, three science blocks and laboratories, three secondary school
dormitories, five steel boat landing jetties, three town halls and civic centre‘s and water projects
in nine communities all in 1998 planned project (HRW,1998).
Similarly, Elf‘s developmental budget on project is stated to be $4.5 to 5 million per
year. While, Agip claims to have invested more than $2.5 million a year over the past ten years
in its ‗Green River Project‘ and to have provided infrastructural development and scholarships
(HRW, 1998). Have these projects contributed to development in the Niger Delta? Human
Rights Watch investigations revealed that these projects failed to meet the aspirations of the
people as the money spent on development has been largely misspent, inappropriate projects
and lack of consultation with the people to articulate their need caused by economic dislocation
of production and exploration activities.
The report of the Environmental Resource Managers Limited is significant as it lists the
causes of dissatisfaction amongst, which are that, the oil companies sometimes initiate and
execute ill-defined projects, which may quickly be abandoned or vandalized by the people in
the community, projects are overvalued to obtain kickbacks, not all the community assistance
23
project may get to the target communities; the projects are not economically viable, self
sustaining or easily maintained, so that they break down soon after installation and
commissioning; projects are initiated and executed without consultation with the benefitting
community (the case where items of hospital equipment were provided whereas the community
has no health institution); that contracts were sometimes awarded to opinion leaders/chiefs who
collected contract fees and abandon the project sites and that they collude with contractors to
falsify or certify job completion in order to share a percentage of the contract sum (ERML,
1992:228).
Similarly, Okoko (1998) opines that ―there is a lack of congruence between the type of
projects and problems created by exploration and production activities, misplaced projects,
structural deformities in the development process of the communities, abandoned, poorly
executed or malfunctioning projects.‖ The irony of these scenario is that the money being spent
by the oil companies itself creates problem for the communities while the problems caused by
the exploration activities also remained unresolved, thus deepening the problems of incessant
conflicts which violates human rights occasioned by the failure of successive government to
develop policies that will address the economic and social disarticulation brought by oil
exploitation in the Niger Delta.
The oil prospecting industry is guided by well established international standards, such
as the American Petroleum Institute (API); American society of mechanical engineering
(ASME) and the International Petroleum Industry Environmental Conservation Association
(IPIECA).The IPIECA Specifically covers regulations on oil spill response, social impact
assessment and the impact of oil spills on fisheries, which has the oil transnational‘s as
members (Amnesty International, 2009).
24
Greenberger (1995) highlights President Clinton‘s announcement of a set of ―model
business principles‖ translated into a voluntary code of ethics to be used by U.S based
multinational companies which encourage them to respect fundamental human and labour
rights. In order to ensure compliance with these standards, the Federal Government of Nigeria
instituted legislative measures such as the Environmental Guidelines and Standards for the
Petroleum Industry in Nigeria (EGASPIN) revised 2002, the Petroleum Act(1969) and the oil
Pipelines Act (1956) and the recent Petroleum Industry Bill (2010).
The oil pipelines Act (1956) provides that: the holder of a permit to survey ―take all
reasonable steps to avoid unnecessary damages to any land entered upon and any buildings,
crops or profitable trees thereon shall make compensation to the owners or occupiers for any
damage done under such authority and not made good‖(Section 6(3). Similarly, the Petroleum
(Drilling and Production) Regulation (1969) obliges licensees or lessees to ―adopt all
practicable precautions . . . to prevent the pollution of inland waters, rivers, water courses, the
territorial waters of Nigeria or the high seas by oil, mud or other fluids or substances which
might contaminate the water and where any such pollution occurs or has occurred, shall take
prompt steps to control and if possible end it‖ (Section 25).
However, the Acts and regulations fail to provide for sanctions and where compensation
is mentioned, it is inadequate; often failing to provide for long term collateral damages. This
provides the enabling environment for serious human rights violations. In addition, the absence
of effective measures aimed at disclosing information to communities regarding environmental
impact assessment and financial disclosures shrouds the activities of the oil corporations in
secrecy and lack of accountability (Amnesty International, 2009).
25
Does the military treaty between the Nigerian government and the government of the
United States Undermine the capacity of the Nigerian government to enforce the liability
of oil corporations for human rights Infringement in Nigeria’s Niger Delta?
A right is regarded as a special entitlement, a denial of which constitutes a double
offence, against the law and against the individual (Montague, 1980). For a right to qualify as
such there must be a right holder and a corresponding duty bearer. Shue (1980) aptly stated
that, for a right to be fully honoured, it must involve three fundamental kinds of correlative
duties. Duties to forbear from depriving right holders of the substance of their rights, duties to
protect right holders against deprivation of the substance of their rights and lastly, duties to aid
right holders in obtaining or regaining the substance of rights of which they are deprived.
The African Commission on Human and Peoples Rights identifies four levels of duties
for a state that undertakes to adhere to a rights regime, namely, the duty to respect, protect,
promote and fulfill these rights (Comm.No.155/96 (2001). An efficient, impartial and
independent judiciary therefore has a sacred role in the enforcement of liability of oil
corporations against human rights abuses and ensuring adequate compensation; but frequent
delays often conspire to mitigate the course of justice, for instance, a case of oil spill
occurrence in Peremabiri, Bayelsa State in January 1987 came to the high court in 1992 and to
the Court of Appeal in 1996 (SPDC v HRH Chief GBA Tiebo V11 and four others, 1996, 4
NWLR, Part 445 p.657). Similarly, a case brought in the high court in 1985 with regard to
damages suffered on a long time basis since 1972 was heard in the Court of Appeal in 1994
(SPDC v Chief George Uzoaru and three others, 1994, 9 NWLR Part 366,P.51).
A case heard in the high court in 1987, in relation to damages inflicted since 1967 was
heard in the court of Appeal in 1990 and in the Supreme Court in 1994 (Elf Nigeria Ltd v.
26
Opere Sillo and Daniel Etsemi, 1994, 6 NWLR, Part 350 p.258). Other factors militating
against judicial remedy are the ―huge cost involved in accessing the Nigerian courts; technical
and relevant information are controlled by the oil companies and final court decisions are
indefinitely delayed (HRW, 1999). These suggest that the Nigerian judicial system lacks the
capacity to provide effective remedy for violations of international law.
Also, the web between oil transnational corporations and the global arms industries
provides a heuristic tool in understanding the use of armed conflict as a political and as well as
an economic resource. The end of the cold war meant a recession for the global arms industries
and the shadowy network tied to the arms trade. The implication meant significant loss of
revenue to the home countries of arm producers which are the developed countries of Europe
and America, which are also the home base of the oil transnational corporations.
To reverse this trend, oil corporations engage in covert activities in fuelling conflict in
their regions of operations. Nitzan and Bichler (1999) highlight a link between increase in oil
wealth and a rise in arms import in Oil Producing Export Countries (OPEC) involving the US
as major supplier. This corroborate Watts (2004) argument that oil companies often operate in
circumstances of (a) civil war and military insurgencies as evident in Columbia, Sudan, Aceh,
and occasionally (b) interstate conflicts, as in the case of Iraq, Caspian basin, Afghanistan and
(c) military governments or undemocratic regimes in which the security and military apparatus
―defend‖ or ―secure‖ oil operations, such as Nigeria, Kazakhstan and Sao Tome which
invariably implies that oil and gas operations are defended and secured by some combination of
foreign, State or private security forces.
Nzongola-Ntalaja (2003:227) shows how armed conflict in Africa provides a market for
the West, as he draws a relationship between the War in the Democratic Republic of Congo
27
(DRC) and the ―logic of plunder‖ which he described as the growing tendency for states, mafia
groups, offshore banks and transnational mining companies to enrich themselves from the
crises. In the case of Sierra Leone, mercenaries, private military company such as Executive
Outcome (EO), air transport firms such as Ibis Air, Soruss, Sky Air and Occidental were
involved in the illegal shipment of arms to the rebel forces – the Revolutionary United Front of
Sierra Leone (RUF) (Musa, 1999:124). The Angolan case also showed how the activities of oil
and diamond companies such as Sodian, De Beers, Chevron, Texaco, TotalFinaElf, Royal
Dutch Shell, ExxonMobil, BP, Statoil, Rangers, etc; exacerbated a civil conflict that inversely
brought wealth to the transnational‘s and their home countries while bringing death and
miseries to the people of Angola for over three decades (Luvhengo, 2006).
Mercenaries and private military companies (PMC) are often involved in conflict ridden
economies and in the exploitation of the natural resources of those countries. These
organizations are closely linked with natural resource transnational‘s and often times trade
services in exchange for mining concessions or oil contracts. Fayemi (2000:18) points out that
in the case of Angola, the government awarded a US$40 million diamond concession contract
to Branch Energy, an arm of Executive Order (EO) a private military company, while the Sierra
Leonean government contract to Executive Order amounted to the tune of $50 million,
involving both cash and mining concessions.
O‘Brien (2000) noted that no fewer than 90 Private Military Companies operated in
Africa‘s conflict regions, most especially in Angola and Sierra Leone which offered their
services to the warring parties and to transnational corporations operating in the region. He
further elucidated that these PMCs have the overt support of their country‘s government
28
intelligent service. Similarly, oil corporations in corroboration with private security firms tend
to create conflict in the Niger Delta through their activities.
Okonta and Douglas (2001:81) showed how four members of Shell police testified to
Project Underground, that Shell officials would give bribe and befriend villagers wherever
there is an oil spill. These villagers would then instigate conflict in the villages over competing
claims for oil benefit, a situation which Shell would then exploit, claiming that it would not pay
any compensation since the community is divided over the issue of who gets what. The officers
also revealed how their special strike force would be deployed to suppress community protest
armed with automatic weapons and teargas.
Former Ogoni members of the Shell police have claimed that they were involved in
deliberately creating conflict between different groups of people and intimidating and harassing
protesters during the height of the MOSOP protests in 1993 and 1994 (Human Rights Watch,
1999). Apart from official government import, the inflow of arms into the Niger Delta has been
through illegal arms trafficking involving racketeers and the oil corporations. Shell for instance,
maintains its own private police force, imports its own arms and ammunition and also makes
payment to the Nigerian military. (HRW, 1999)
Evidence from litigation, involving XM Federal Limited v Shell showed that Shell
negotiated the import of weapons into the country in clear breach of an arms embargo between
1993 and 1995. According to the material evidence, Shell had sought tenders from Humanitex
Nig.ltd to acquire weapons worth US $500,000. These included 130 Beretta 9mm caliber sub
machine guns, 200,000 rounds of bullets and 500 smoke hand grenades. Nigeria Inspector
General of Police approved the arms purchase under pressure from Shell managers (Frynas,
2000: 55).
29
In response to allegations relating to the import of weapons, Shell stated that it had in
the past imported side arms on behalf of the Nigerian police for use by the ―supernumerary
police‖ who are on attachment to Shell and guard the company‘s facilities. . . It stated to
Human Rights Watch, that it ―cannot give an undertaking not to provide weapons in the future,
as due to the deteriorating security situation in Nigeria, we may want to see the weapons
currently used by the police who protect Shell people and property upgraded‖ (HRW,
1999:13,14).
Chevron Nigeria stated in correspondence with Human Right Watch, that it has ―a
running contract with some private security companies for the protection of company asset
against theft and to control access to our premise. CNL does not have a running contract with
any government security agency‖. Mobil similarly divulged that ―under the joint operations
agreement and also in the interest of Mobil employees, contractors are in order to safeguard our
facilities against theft and sabotage; we make efforts to provide adequate security facilities in
our areas of operations. We do have a security department. Elf on its part stated that it uses
landlords and community guards to secure its well heads and installation and these local guards
are paid 500 percent above the national income wage (HRW, 1999:105).
The high point of these is the fabricating of a security complex which turns the Niger
Delta into a militarized zone. Ekine (2001:19) aptly stated that: ―Shell and other oil companies,
especially Elf and Chevron, have shown their open hostility and disregard for local
communities by working hand in hand with the Nigerian military, providing them weapons,
transport, logistical support and financial payments in order to commit acts of violence against
people and property, in turn the military serve as a personal security force to oil workers‖. The
30
Nigerian state in cooperation with the oil corporations‘ unleashed waves of terror on the people
against what it perceives as threats to oil flow.
In October, 1990 the village of Umuechem in Rivers state was completely razed by the
Mobile Police Force, destroying 495 homes and leaving at least 80 villagers dead during a
demonstration for development projects from Shell (Amnesty international, 1994: 7, 8; HRW,
1999:112). The killings and brutal repression of the Ogonis in Rivers state by the Internal
Security Task Force was well documented and widely reported. The head of the Task Force,
Major Paul Okuntimo wrote a secret memo to the Rivers state military administrator on May 12
1994: ―Shell operations still impossible unless ruthless military operations are undertaken for
smooth economic activity to commence…‖ In a few weeks the task force had raided almost all
the 126 Ogoni villages. The soldiers massacred, raped and looted. CLO (1996:18) and Carew
(2002) gave a graphic account:
The Nigerian security forces attacked, burned and destroyed
several Ogoni villages and homes under the pretext of
dislodging officials and supporters of the Movement of the
Survival of Ogoni people (MOSOP). These attacks have
come in response to MOSOP‘s non-violent campaign in
opposition to the destruction of their environment by oil
companies. Some of the attacks have involved combined
forces of the police, the army, the air force, and the navy,
armed with armoured tanks and other sophisticated
weapons. In other instances, the attacks have been
conducted by unidentified gunmen, mostly at night.
The Nigerian government in essence placed its ―legal and military powers . . . at the
disposal of the oil companies‖ and allowed ―ruthless military operations‖ against the Ogoni
people (African Commission Decision, 2001). Nigeria was subsequently, suspended from the
commonwealth in November,1995 following the extra-judicial killing of human rights activist
Ken Saro Wiwa and other Ogonis. The suspension however, does not in any way restrain the
31
Nigerian state and the oil corporations from engaging in militarized commerce, as many other
communities in the Niger Delta are given the same dose of treatment. In the case of Odi, in
Bayelsa state, grenades, long and short missiles with biological reagents were used in the
invasion and destruction of Odi town in 1999 (Briggs, 2002).
The consequences were a chilling record of over two thousand deaths with more
missing, while thousands were forced to flee and virtually no house was left standing in Odi;
added to this misfortune was the President‘s command to the security forces to shoot rioters at
sight. (Ibeanu, 2008:28) Also, on December 30th 1998 following protest against oil companies
by Ijaw youths over the Kaiama Declaration, thousands of army troops and navy personnel
were brought into the region in response to this protest. In Yenagoa, at least seven youths were
shot dead by security forces on December 30th and another sixteen the following day in nearby
communities.
Furthermore, Twelve youth leaders were detained . . . with over one hundred people
shot dead in and around Kaiama, over twenty houses burnt and the community were deserted
(HRW, 1999). Similarly, disturbances in Iko, Akwa Ibom state, following protest against Shell
over a badly malfunctioning flare led to the burning of fourty houses by the mobile police
(ERA, 1998). Also, in February 1999, Human Rights Watch documented an incident involving
soldiers using a chevron helicopter and chevron boats to attack villagers in two communities in
Delta state, Opia and Ikenyan, killing at least four people and burning most of the villages to
the ground (Hrw.org/press/1999/Feb./nig0223.htm).
In other cases people were tortured and subjected to arbitrarily detention for lengthy
periods for protesting against oil companies, for instance, the case of Egbema in Imo state in
1999; Obagi, Brass, Nembe Creek and Rumuobiokani in 1995 (HRW,1999; HRW, 1995).
32
These clearly highlight a connection between oil corporations, militarism, armed conflicts and
anti-democratic politics (Banfield, et.al, 2003; Banks and Ballard, 2004; Bannon and Collier,
2003; Singer, 2003; Banfield and Champaign, 2004; Nitzan and Bichler, 1999; HRW, 2003).
The United States as a global hegemony is well positioned to enforce the liability of oil
corporations, given the fact that 90 percent of transnational companies stem from the U.S.A
(Fowler, 1995). The literature however shows that oil constitutes a ―national security issue‖ to
the United States, and she has used her hegemony to not only protect its continuous flow but
has also engaged in major wars, as articulated from America‘s foreign policy in the Middle
East to the Gulf of Guinea (Rowell, Marriot and Stockman, 2005; Pelletiere, 2004; Klare, 2001;
Engdahl, 2004; Mann, 2003).
Rowell (2005) Contends that America is intensifying its military operations on the
African continent, having secured agreements with 8 – 10 African nations to allow the U.S.
military to utilize air fields and other suitable sites to establish ―cooperative security locations‖
from which it can launch military strikes. He further states that America is quietly increasing its
military presence in Nigeria; a clear manifestation is the increase of American weapons in the
hands of the Nigerian army and navy in the Niger Delta region. This clearly, shows that the
Nigerian State is caught up in the web of international capital and with the collaboration of the
United States Government, it has not only failed in enforcing the liability of oil corporations
for violations of international law but has itself acted as catalyst in armed conflict and
violations of international law in the Niger Delta.
This is demonstrated in the failure of Nigerian government to investigate and punish
military personnel involved in militarized commerce, it was claimed that the Nigerian
government had even admitted its role in the violent operation in several memos exchanged
33
between officials of the SPDC and the Rivers state internal security task force during the Ogoni
crisis (HRW, 1999), and also the incapacity of the Nigerian legal and administrative system to
enforce international treaties on oil transnational corporations operating in Nigeria‘s Niger
Delta.
The literature thus shows a link between oil corporations, militarism and antidemocratic
politics (Eaton, 1997; Dommen, 1998; Mowerry, 2002; Frey, 1997; Hunter, 2002; Kinley and
Tadaki, 2004; Fowler, 1995; Shelton, 2002; Frynas, 2000; Cooper, 2002; Reno, 2000). This
scholarship shows that transnational corporations promote conflict in order to sustain the global
arms market. This illustrate what Nordstrom (2004) calls the ―shadows of war,‖ which
describes the multi- trillion dollars financial networks which actively promotes conflicts, yet
remains invisible. This underscores the limitation of the reach of the State in enforcing
violations of international law as presently constituted (Kamminga, 2004; Paul and Garred,
2000; Vazquez, 2004; Rassi, 2003; Le Billion, 2001; Juma, 2007).
Does the compensation provided by the U.S. Alien Torts Claims Act reduce the pressure
of opposition against the commercial activities of oil corporations in Ogoniland of
Nigeria’s Niger Delta?
Popular pressure by oil bearing communities against transnational oil corporations had
met violent state repression. A veritable case in point is the Ogoni crisis and the extra judicial
execution of human rights activists in November 10, 1995. In the light of state failure,
international humanitarian law act to provide a forum; but scholars contend that its content is
devoid of enforcement (Rehman, 2003; Janis, 1993). This is largely because international law is
essentially state centric. However, the United States through its legal system has attempted to
overcome this limitation through the use of the Alien Torts Claims Act. With this over two
34
century American law, U.S. courts have become a citadel for universal justice. This statute
dates back to the judiciary Act of 1789, 1 stat. 73, 77 (1789) and the modern rendition states
that ―the district courts shall have original jurisdiction of any civil action by an alien for a tort
only, committed in violation of the law of nations or a treaty of the United States‖ ATCA – 28
U.S.C§1350 ( 2000). This statute thus authorizes a non U.S. resident to initiate a civil law
action in U.S. federal courts based on violations of the ―law of nations‖. This is articulated in
Abebe – Jira v. Negewo, where the Eleventh Circuit asserts that:
Congress . . . has recognized that the Alien Torts Claims Act
confers both a forum and a private right of action to aliens
alleging a violation of international law. . . Accordingly, the court
concludes that the Alien Torts Claims Act establishes a federal
forum where courts may fashion domestic common law remedies
to give effect to violations of customary international law (72
F.3d 844,847, 11th Cir. 1996).
Similarly, In Paul v. Avril, the court held that the plain language of the Alien Torts
Claims Act and the use of the words ―committed in violation‖ strongly implies that a well pled
tort, committed in violation of the law of nations would be sufficient to give rise to a cause of
action 812 F.Supp.207, 212 S.D. Fla. (1993). Also, in Iwanowa v. Ford Motors Co., the court
finds that the Alien Torts Claims Act provides both subject matter jurisdiction and a private
right of action for violations of the law of nations. In Eastman Kodak Co. v. Kavlin, the District
Court for the Southern District of Florida, noted that:
This statute presumably is based upon congress‘ power under
Article 1, section 8 to define and punish . . . offenses against the
law of nations.‖ Traditionally, the law of nations was interpreted
as those moral codes that governed the behavioural interaction
between sovereign nations and those binding norms affecting
individuals that fell within the jurisdiction of judges to enforce.
35
It stands to reason that in adjudicating ATCA cases the responsibility lies on the court to
determine acts that constitute international crime for which individual liability exist at
international law. In Kadic, the second circuit held that ―we do not agree that the law of nations
as understood in the modern era confines its reach to state action. Instead, we hold that certain
forms of conduct violate the law of nations whether undertaken by those acting under the
auspices of a state or only as private individuals (Kadic, 70 F.3d at 239).
Also, in Carmicheal v. United Technologies and Eastman Kodak, the court relying on
the colour of law doctrine or state action, held that a conspiracy between private individuals
and state actors to commit a violation of the law of nations was actionable under the Alien
Torts Claims Act. This shows that an indirect participation in state committed wrongs is
sufficient enough for individual liability whether or not individual liability is available in
international law. Colour of law doctrine for the Kadic court is a legal tool applied in the
extension of state liability to an individual where that person acts together with state officials or
with significant state aid Kadic V. Karadzic, 70 F.3d 232, 245 (2d Cir.1995).
This suggest that plaintiffs wishing to sue a transnational company for torts committed
in violations of the law of nations must establish a case of negligence, complicity or joint
liability with the company‘s limited participation or knowledge. For instance, following world
war 11, corporations that supported human rights violations were found criminally liable. These
crimes as specified in Article 6 of the Nuremberg charter includes, ―crimes against peace,‖
―war crimes‖, and ―crimes against humanity‖. Also, the control council law No.10,
implementing the 1946 agreement, included a clause that comprise aiding and abetting liability.
The statute states that: ―A person is deemed to have committed crime if he was (a) a
principal; (b) was an accessory to the commission of any such crime or ordered or abetted the
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same or (c) took a consenting part therein or (d) was connected with plans or enterprises
involving its commission.‖ It was this statutory provision that gave enforcement to the United
States Military Tribunal, in the trial that involved some accused German industrialists. In
United States of America v. Friedrich Flick, the Tribunal found Flick guilty and was convicted
for his knowledge and approval of his deputy‘s use of Russian slave labour to increase quota
outputs. Also, United States of America v. Carl Krauch, referred to as the Farben case, the
Tribunal found Carl Krauch guilty of aiding and abetting in the use of slave labour because of
his knowledge that business decisions would lead to such an outcome and also because of the
fact that he was a ―willingly participant‖ in the enslavement. Similarly, United States of
America v. Alfried Felix Alwyn, Krupp Von Bohlen and Halbach, referred to as the Krupp
case, the accused were found guilty in the crime of aiding and abetting in slave labour.
In the Zyklon B case, the British Military court of Hamburg also found the accused
guilty based on the fact that they sold the poison gas Zyklon B to the Nazis with the knowledge
that it would be used in committing genocide against the Jews and others in gas chambers.
(Diskin, 2005) This thus demonstrates that international law recognizes aiding and abetting as a
crime under the law of nations. In articulating the Alien Torts Claims Act jurisprudence,
Forcese (2001:496-498) noted that:
Courts unravel the law of nations with reference to various
authorities, endorsing as international law those principles that
are sufficiently universal and obligatory. Court practice to date
establishes that liability for individuals is possible in two
circumstances. First, ATCA liability may attach where individual
responsibility for breaches of international law is available at
international law . . . second, courts adjudicating ATCA matters
have relied on colour of law jurisprudence to evaluate instance
where private actors are as proximate to state abuses as to be
considered state actors liable for breaches of international law.
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This shows that for corporate complicity to be established there must be an evidence showing
that a private party and the state benefited from executing a wrongful act or evidence showing
joint participation, which test whether state officials and private parties collaborated in
executing a deprivation of constitutional rights. With these basic principles underlying the
Alien Torts Claims Act, we examine substantive Alien Torts Claims Act jurisprudence.
Dodge (2002) aptly stated that the land mark case of Filartiga v. Pena-Irala marks the
beginning of the use of the modern Alien Tort Statute. Filartiga filed a suite which alleged that
a Paraguan police officer, Americo Norbeto Pena-Irala, tortured his son (Joelito Filartiga) to
death in violation of the law of nations. The second circuit held that the Alien Torts Claims Act
provided jurisdiction over the Filartiga‘s claim 630 F.2d 876 (2d Cir.1980). The Filartiga‘s
legal triumph over the Paraguan state propagated the ATCA jurisprudence which led to a
proliferation of ATCA cases especially targeted at human rights violations. Rogge (2001)
however contend that most of these cases fail to reach the merit and were dismissed on the
ground of ―Forum Non Conveniens.‖
For instance, in Aguinda v. Texaco, the indigenous people of Ecuador filed an action
against Texaco for environmental degradation as a result of Texaco‗s activities, but the court
dismissed the case for forum non conveniens, with the agreement that Texaco abide to the
jurisdiction of the Ecuadorian domestic court 303 F.3d 470, 480 (2d Cir.2002). Similarly, in the
Union Carbide – Bhopal case, a highly toxic chemical was spill at Union Carbide‘s plant in
Bhopal India, killing thousands and permanently disabling hundreds of thousands.
A class action suit under the ATCA failed and was brought back to India, however, the
Indian Supreme Court found Union Carbide liable (Rogge, 2001); however in Dow Chemical
Co v. Alfaro, the Supreme court of Texas refused to dismiss the case on the ground of forum
38
non conveniens, wherein Costa Rican banana workers file a suit against Dow chemical for
personal injuries incurred which includes cancer and male sterility as a result of Dow‘s
dispensation of chemical pesticide known to cause reproductive damage which had hitherto
being ban in the United States (Rogge, 2001).
The case of Doe 1 v. Unocal Corporation is especially noteworthy in the context of our
review. In this watershed case, the residents of Myanmar brought a class action suit under the
Alien Torts Claims Act alleging egregious human rights violations against them by the
Myanmar military, which Unocal had hired to provide security for its Yadana oil pipeline
project. The suit alleged that Unocal, a US oil corporation aided and abetted the military‘s use
of forced labour, murder, rape and torture (395 F.3d at 939-42).
For their plea to be successful, the Alien Torts Claims Act would require the plaintiffs
to be (1) Aliens (2) prove whether the tortuous act is a violation of the law of nations and (3)
whether the tortuous act requires the private party to engage in state action for liability to attach
and if so, whether the private party so engage in state action (Doe 1 v. Unocal, 2002
WL31063976 at 10); while the District Court adjudged that Unocal‘s link to human rights
abuses was inadequate in instituting liability under the law of nations 110 F. Supp.2d 1294
(C.D. Cal. 2000),
The Ninth Circuit Court of Appeal, with reference to the issues, declared that ―torture,
murder and slavery are jus cogens violations and thus violations of the law of nations. The
court also acknowledged that the law of nations attribute individual liability to flagrant conduct
(such as slave trading, genocide or war crimes) without requiring state action, it therefore
asserts that crimes like rape, torture and summary execution, when committed in furtherance of
such flagrant crimes, do not require state action for Alien Torts Claims Act to attach. Therefore,
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the court determine that the plaintiff‘s claim that the military committed rapes, torture and
summary executions coupled with forced labour on the pipeline project were sufficient to state
a cause of action for individual liability under Alien Torts Claims Act without requiring state
action (Doe 1 v. Unocal, 2002 WL31063976 at 11).
Having established that the plaintiff‘s allegations of forced labour, rape, murder and
torture by the Myanmar military were sufficient to state a cause of action in tort under Alien
Torts Claims Act, the court then sought to ascertain whether Unocal aided and abetted the
Myanmar military in those ATCA violations. Applying the doctrine of (1) actus reus which
consist of providing practical assistance that has a substantial effect on the perpetuation of a
crime and (2) the mens rea element which involves knowing or having reason to know that the
principal perpetrator of the crime had the intent to commit such an offence (Doe 1 v. Unocal,
2002 WL31063976 at 13).
The court found that there was enough evidence in the record to show that, material
evidence of fact exist, as to the use of forced labour in the construction of the pipeline and
that Unocal Corporation, provided practical assistance by furnishing food and money to the
Myanmar military in exchange for its security and pipeline infrastructure construction, by
supplying photos, surveys, and maps that guided the construction activity and by participating
in daily meetings to determine where the security was needed and where the construction
would take place.
The court sensed that there was a correlation between the assistance and the
perpetration of the crime of forced labour, such that the forced labour may likely not have
occurred if Unocal had not hired the Myanmar military to provide security or had not showed
the Myanmar military where the pipeline construction should be (Doe1 v. Unocal, 2002
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WL31063976 at 15). As regard the mens rea element of the forced labour claim, the court
declared that Unocal either knew or reasonably should have known that the act of providing
financial resources to the Myanmar military and instructing the Myanmar military where to
provide security and where the pipeline was to be build, would assist or encourage the
Myanmar military to subject the plaintiff‘s to forced labour. The court having established that
material fact existed with respect to Unocal‘s act and with regard to whether that act satisfied
that requirement of the actus reus and the mens rea elements of aiding and abetting forced
labour which constituted a valid ATCA‘ claim, the court reversed the District court decision to
grant summary judgement in favour of Unocal with respect to forced labour.

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