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

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 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.

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 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 Ikpeze²¹ examines 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.

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 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...