The impact of Nigerian international petroleum contracts on Environmental and Human Rights of indigenous communities By Okechukwu Ejims*

I. Introduction

The use of international petroleum contracts in petroleum development has now become a contemporary trend throughout the world.[1]  In practice, petroleum development has been determined by these contracts,[2] and multinational companies involved in petroleum development have entered into a lot of these contracts, which have caused them to carry out petroleum development in regions inhabited by indigenous communities.[3] These indigenous communities include the communities in Niger Delta of Nigeria.[4] Having said that, the communities in the Niger Delta see such development as a threat leading to the infringement of their traditional rights related to the use and management of lands and natural resources which they perceive as theirs by way of tradition and usage.[5] Accordingly, this projected development of traditional lands has generated traditional rights concerns that have caused conflicts in the Niger Delta region of Nigeria inhabited by indigenous communities.[6]

The Niger Delta, with an estimated area of about 75,000 km2 is estimated to be the world’s largest wetland, with the most extensive freshwater swamps inhabited by various communities.[7] The region is also rich in biological diversity, and specifically marine life on which the communities depend for their food and sustenance.[8] Replete with large oil and gas deposits, the bulk of Nigeria’s revenue is attributable to oil extracted from the region.[9] This has led to environmental degradation, general neglect and impoverishment of these communities.[10] The problem may be exacerbated by the fact that there is a clear absence of a rights based approach towards tackling these issues. Since we acknowledge the problem associated with the region as a result of the unsustainable petroleum development, a re-assessment of the situation is therefore imperative. The concerns initially raised by these communities is that they are indigenous communities, and have through non-violent protests, which have now turned into violent armed conflicts requested for effective participation in decision making concerning the development of oil and resource control in order to stem the tide of restiveness in these communities.[11] A thorough examination of these questions and a search for possible answers constitute the driving forces behind the research presented in this article.

The fact is that the plight and movement of communities in the Niger Delta is similar to the movement of indigenous peoples to claim their rights to land and natural resources, and the tide of international opinion and law favours the involvement of indigenous peoples in decisions that relate to their rights to land and natural resources. These developments show why the right of indigenous peoples in international law to land and natural resources is seminal to the discussion in this article.

However, such concerns have arisen because of the tide of Nigerian international petroleum investment contracts, which has given the state and multinational companies full rights and control over petroleum resources, and not provided for stringent measures in the contracts for protecting the environment of the communities of the delta region during petroleum development. Thus depriving the communities’ rights to their petroleum resources and threatening the rights and survival of these communities where these resources are found. Having said that it is pertinent to note that the strong investment protection in the contracts portray neo-liberal values in that they do not consider other competing issues such as environment and human rights,[12] which may arise as a result of foreign investment activities in the petroleum sector. Therefore with the aim of avoiding this type of concern, this article embarks on the quest for a broader, more inclusive approach in terms of law and legal process through public international standards on the rights of indigenous peoples to land and natural resources to challenge the neo-liberal model in order to enhance environmental and human rights interests of the oil regions in the delta of Nigeria.

This article therefore examines indigenous peoples’ rights to land and natural resources as an instrument in dealing with the petroleum development concerns in the Niger Delta region of Nigeria. Before analysing the indigenous peoples’ rights concept, this article necessarily examines the human rights and environmental impact of contracts on the communities of the Niger Delta of Nigeria, as well as the contract system.  In so doing, the approach that will be adopted here is primarily to consider, on the one hand, the extent to which the Nigerian international petroleum investment contracts contribute to depriving these communities during petroleum development of the enjoyment and use of their natural resources, and their right to a satisfactory environment. It frames the impact in terms of several provisions in the contracts in the view of neo-liberalism, and draws on concrete examples from (1) the Operating Agreement between the Nigerian National Petroleum Corporation and Texaco and (2) the Participation Agreement dated 12 January 2005 for Oil Mining Lease No. 113 among Yinka Folawiyo Petroleum Company Limited, Syntroleum Limited, Lindin Petroleum B.V, Palace Exploration Company, Challenger Minerals Inc, Providence Resources PLC and Howard Energy Co. Inc. Then again, this article deals with the way forward in terms of the practicability of using the rights of indigenous peoples to land and natural resources to enhance the situation of these communities, which will bring about sustainable development. In other words the neo-liberals views present in the contract will be confronted in order to have a more balanced contract. This article concludes that international law principles on the rights of indigenous peoples to land and natural resources are mechanisms that could be employed to deal with particular concerns in the Niger Delta region. It also argues that these principles can be used as a standard setting in overcoming the dominant viewpoint of neo-liberalism expressed in the Nigerian international petroleum investment contracts.

II. The Contract System and Petroleum Ownership

It is pertinent to note that in Nigeria, leases for the exploration and exploitation of petroleum are granted by the Nigerian Government and that the government’s state-owned oil company, Nigerian National Petroleum Corporation (NNPC) has reserved the rights to the exploration and production of petroleum within the Nigerian territory.[13] However, it is also pertinent to note that the Nigerian Government can also reserve these rights for private Nigerian oil companies. An example of this can be seen in the Participation Agreement dated January 2005, where the government reserved this right for Yinka Folawiyo Petroleum Limited.[14] As a result, either the NNPC or a private oil company in Nigeria has the right, power and authority to enter into international petroleum investment contracts for the exploitation of petroleum under a lease for the development of petroleum.[15] In furtherance of this power the NNPC or a private Nigerian oil company has entered several international petroleum investment contracts with international oil companies. This information is based on the agreements which we are going to analyse in this article. What is important here is the assertion that (a) these agreements constitute the means by which petroleum rights are acquired by international oil companies, that (b) they establish the rights and responsibilities of the private and public parties, including the formulas necessary to calculate the amount of the revenues shared with the Nigerian Government or its state-owned oil company, and that (c) they govern the operations under the lease. The truth of this assertion can only be determined after an examination and assessment of these contractual arrangements for the acquisition of petroleum rights in Nigeria.

In order to ascertain the truth of this assertion, the rights and obligations of the Nigerian state-owned oil company or a private Nigerian company and the international oil companies in the agreements need to be looked into. This is because the position of the parties under these arrangements is defined by a set of obligations and rights. The most important ones of these are:

A.    Acquisition of petroleum rights

The Participation Agreement dated January 2005 among the various international oil companies provides that these companies shall acquire interests in Lease No.113 for the exploration and exploitation of petroleum in the lease area.[16] No doubt, it is also noted that these companies acquire revenue participation in this lease once the interests have been transferred.[17]  The revenue participation indicates that the companies have profit sharing interests.[18] In addition, each party to the contract is entitled to receive profit in accordance with its participating interests. On the other hand, the Operating Agreement between the NNPC and Texaco Overseas indicates that the parties have participating interests in the lease in respective proportions.[19] Noteworthy is that an examination of these agreements will help to build an understanding of the way in which these Nigerian international petroleum investment contracts give each party undivided ownership and rights in relation to the lease for the development of oil. Equally noteworthy is the fact that each party to the agreements has the right to lift and separately dispose of its participating interest share of available petroleum.[20] This in turn, demonstrates a larger trend in investment liberalization. Moreover, these acquired rights in these leases could be a way of protecting the companies’ interests in the petroleum industry. This is because these rights could be further strengthened by the language in Nigerian international investment treaties which include existing contracts for the exploitation and exploration of petroleum within the scope of investments which are protected, such that any nationalization of these acquired rights may be treated as an expropriation.[21]

B.     Operating Cost

Articles 10.1.1 of the 1988 Operating Agreement between the NNPC and Texaco provides that all costs and expenses incurred by the operator (who is appointed by the parties pursuant to this agreement to carry out joint operations, normally the oil companies) in carrying out the joint operations shall be borne by the parties to the agreement in proportion to their respective participating interests. The Participation Agreement dated January 2005 also provides that the parties to the agreements, the companies, shall also bear the risk of operating costs required in carrying out petroleum operations in the lease area.[22] This however, is an obligation that is imposed on the parties to furnish the entire up-front money for the costs involved in the exploration of the initial oil well.

C.    Reimbursement

The Participation Agreement of January 2005 provides that the parties shall be entitled in proportion to their respective Cost Bearing Participations to be reimbursed, which will be sufficient to compensate for their operating cost.[23] This agreement seems to be attractive to oil companies because it enables them to obtain a quick recovery of expenses of exploration, development, and other operating costs they have incurred.

D.    Control and management of operations

The management provisions in the Operating Agreement between the NNPC and Texaco assert that the operator of the lease (Texaco) shall have and be responsible for the control and management of the operations contemplated in the agreement as well as its execution.[24] On the other hand, this provision is absent in the Participation agreement of 2005. It appears, therefore, that the ultimate responsibility of control and management of petroleum operations is vested with the various international oil companies operating the lease, since it is difficult to separate the overall management of the petroleum operations from the daily conduct, especially where the various oil companies bear the financial responsibilities.

The petroleum investment contracts are the result of efforts to enable the Nigerian Government and the international oil companies to exercise control over both petroleum operations and the ownership of production. In assessing these contracts, one will note that the structure of the contract secures the interests of the Nigerian Government and the international oil companies. Among the general objectives which the Nigerian Government and the international oil companies seek to observe are the maximization of their revenue and control over operations. In such a situation, the retention of these interests by the Nigerian Government and the oil companies should be seen as symbolic.

We now turn to the impact of the parties’ rights and obligations on the Niger Delta region. The undivided ownership, rights and control of the Government and the international oil companies over the development activities means that communities with the land containing the oil do not have any interests whatsoever in the petroleum. From the petroleum contracts’ perspective here, it can be noted that these clauses indicate that these communities cannot tap directly into the benefits from their oil resources. This is due to the fact that the petroleum contracts require the Nigerian Government, its state-owned oil companies and international oil companies to share the revenue from the petroleum resources. This perhaps may contribute to the fact that these communities do not benefit equitably from their rich endowments of petroleum resources. The extent and spatial patterns of poverty in these communities confirms this assertion. In confirming this assertion we have to look at the general methodology of these contracts and the obligations that arise from them.

III. The General Methodology of the Petroleum Investment Contracts regarding Petroleum Ownership and Environmental Protection

The contracts as stated above clearly define the responsibilities of the parties, as well as their rights in the contract. They explain the legitimacy of these rights, obligations and responsibilities within the context of petroleum exploration and exploitation by stating that all the parties to the contract have undertaken obligations to successfully carry out the exploration and exploitation of petroleum. The contracts see the Nigerian Government, its stated owned oil company and the international oil companies as the primary stakeholders in the petroleum exploration and exploitation. They have exclusive rights over the land where the petroleum resources are founded, negotiate the contracts and set the provisions that require the Nigerian Government or its oil company to combine with the international oil companies to implement the petroleum project. We must also note that the contracts are the results of efforts by the Nigerian Government to exercise control over both petroleum operations, ownership of production with the participation of the international oil companies and the exclusive rights to the territory where petroleum resources are found.

This now leads us to the interests acquired by the parties in the contracts. As stated above, the contracts provide that the Nigerian Government, through its state oil company, and the international oil companies have a stake in relation to the petroleum resources. And on the other hand, the management responsibility of the oil exploration has been conferred upon the international oil company. Hence, with respect to the international oil companies, since they have acquired interests in the contracts and share project revenues with the Nigerian Government and its state-owned oil companies as stated above, they consider that the contracts demonstrate investment liberalisation. This approach, however, in seeking to promote the objectives of investment liberalisation, errs in its starting point. In stating that the parties have various stakes in the contract, the contract approach completely avoids the Niger-delta communities, and makes no provision for them to take steps to fully benefit from their available petroleum resources. Moreover, there are no provisions for them to have rights to their land and natural resources vital for their survival. The serious conflicts and legitimate grievances that are seen in these communities are not being taken into account in this approach and thus cannot be addressed in this context. This has led us to criticise the contracts for not giving these communities a say in the exploitation of their petroleum resources, including where, how, and who exploits the oil resources of their lands and who the beneficiaries of the exploitation are. Examination will show that the contracts analysed above are lopsided in favour of the parties to the contract. They all recognise potential benefits for the parities in terms of their participating interests but they miss the point in that they fail to give right to the Niger-Delta communities to participate in the benefits derived from petroleum activities. By completely excluding these communities, the contracts deprive them of any control of their lands and resources or even any opportunity to address issues under the contracts, much less the opportunity to benefit from their petroleum resources.

The reason law makers have excluded the Niger delta region in this regard could be due to fears that communities in the region may frustrate the whole process of petroleum development.[25] Even though that may be the case, this article argues that rather than outright exclusion of these communities there should be some form of cooperation between these communities and all stakeholders involved in petroleum development. Having said that, it is clear that the contracts are instruments through which dominant philosophy and views of neo-liberalism are expressed on the basis that the contracts have failed to incorporate human rights provisions for protecting these communities.

A.   Interpretation of the Rights and Obligations that Arise from these Contracts

As can be seen from the above discussion, the obligations of the international oil companies that act as the operators of the petroleum project are seen as relevant and central to the successful development of petroleum. However, the rights and obligations set out in the contracts are in themselves detailed. It is therefore difficult to see how the contracts could create a tripartite arrangement that would include communities of the Niger-delta, other than the Nigerian Government and the international oil companies. Although the contracts specify in great detail the nature of the rights and obligations of the parties, they contain no provisions that include these communities or allow their participation in decisions relating to the exploitation of petroleum resources found in their lands. The general rights and obligations in the contracts provide more detailed guidance about the specific rights and obligations of the parties.

Each provision in relation to the development of petroleum sets out the content of rights and obligations in terms of the implementation of the project. The contracts, as we have seen above, focus upon rights, obligations, control and management of the project. Of particular importance with regard to the rights, the contracts contain requirements that give the parties undivided percentage interests in the lease for development of petroleum. Of particular relevance in the context of obligations, control and management of the petroleum project, the contracts state that the provision of these obligations must be according to certain criteria stated. However, as we have noted, there is an attempt in the contracts to set out the full details of the parties’ commitment to the contract.

Further, since we have noted that the contracts do not address the grievances of these communities in that they do not participate in decisions relating to the exploitation of their petroleum, the important question would be how can we resolve the conflict to the extent that the communities can equitably benefit from their oil resources? At this stage, a recommended solution will not be considered. This will, however, be discussed below. What is important here is how the status of the parties to the contracts would be interpreted by tribunals.

What has been shown by the survey of the contracts above is that the relevant provisions discussed above will be a relevant source for arbitral tribunals in the interpretation of the rights and obligations of the parties to the contract. A tribunal will, however, place considerable weight on the provisions relating to the parties’ rights and obligations in coming to determinations on the content of the relevant rights and obligations of the parties in relation to petroleum development. And such interpretation would be made in accordance with the wording of the provisions. Since these provisions are clearly stated in the contracts, the tribunal will interpret them in accordance with a general understanding of what the provisions imply. If so, the undivided ownership, control and management of the petroleum lease will be attributed to the parties to the contracts.

At this stage, the question here would be the relevance of such interpretation in the context of the claims made by communities in the Niger-delta region in relation to their petroleum resources. Given the above discussion, we may conclude that it would be extremely contentious for these communities to claim any rights in their petroleum resources. In that scenario, the parties to the contracts would be utilising the rights and obligations they have in the contracts in order to state their claims in situations where there is an apparent conflict with these communities in relation to the ownership of the petroleum within their lands. As such, tribunals faced with this conflict will decline jurisdiction since these communities are not party to the contracts. Hence, the above discussion makes clear that the nature of the contracts will enable tribunals form the law under them in a way that will promote neo-liberal views in this area of law of international investment. In turn, there is little guidance for the interpretation of the provisions of the contracts which would serve the demands of these communities.

B.  The reality and skewing problem of the Nigerian petroleum contracts system    

The examples presented above highlight some of the potential negative impacts of an overly commercial approach within the contracts on the protection and promotion of human rights. They are indicative of the different underlying philosophies of commercial production sharing on the one hand and human rights on the other hand in the contracts as set out above in this article. They are also indicative of the fact that the contracts, based as they on commercial needs, include predictable rules that allow for effective satisfaction of the interests of the parties to the contracts. Protection and promotion of human rights of these communities, on the other hand, requires the flexibility to take measures to stop abuses occurring, particularly with regard to the exploitation and exploration of petroleum in the delta region.

The difference in approach is perhaps best perceived in the interpretation of human rights under international human rights law relating to the rights of indigenous peoples. The principles of human rights that will be discussed below need to be absolutely fundamental to the contracts, but the practical importance of their incorporation will be highlighted as well.

To incorporate the principle of human rights within the contracts would not be to restrain the parties from actually fulfilling the commercial aspects of the petroleum projects, but would provide a balance by which commercial and non-commercial interests can interact. The principle of human rights, designed as it is to achieve justice, may necessitate affirmative action being taken where appropriate in order to promote and protect the human rights of the delta communities during petroleum development.

While the principle may have overall welfare-increasing tendencies, there are concerns, which have been discussed here, that the contracts as they stand have been formulated in ways which may not allow room for the application of the human rights principle and, in particular, the use of affirmative action in order to prevent human rights issues.

Thus, for instance, the contracts deal with the granting of favourable rights and interests to the parties in relation to petroleum development, which only concentrate on the parties’ respective commercial interests. The manner in which the contracts grant these rights is indicative of the way in which the contracts are skewed towards commercial matters only. One possible stance would be to argue that the contract does not have the competence to deal with any issues of human rights that may arise from the exploitation of petroleum, and this assertion will now be examined.

Even though it can be said that there are some rudimentary human rights principles in the contracts that relate to property rights, such provisions as there are may have reduced the ability to effectively promote and protect the human rights of communities in the delta region. An important issue highlighted by the wording of the contracts in the context of petroleum development is the fact that it only requires the parties to ensure that they carry out the day-to-day running of the project, including bearing the cost and sharing the profits, according to their participating interests, after the sale of petroleum. Despite the fact that the commercial approach could most likely be justified on the grounds of taking affirmative action to promote foreign investment and advance economic growth and prosperity, such commitments could conceivably prevent the parties from complying with the promotion of human rights principles.

From the above discussion, it can be seen that the contracts do not seek human rights protection. The reality of the vision embodied in the contract system is not simply a lack of human rights protection. The operator bias inherent in the contracts as above discussed, means that it cannot be assumed that the contracts will be concerned, in any way, with the pursuit and promotion of human rights protection. Rather, the provisions in the contract system adopted are to a certain extent focused on the commercial interests of the important players which are the Nigerian Government and the international oil companies. The neo-liberal view here which is not different from the ones in investment treaties could be linked to the hypothesis that the total protection of foreign investment is central to the inflow of foreign capital.[26]

However, it is not simply a matter of the contractual provisions which are aimed at investment liberation and openness being revamped to support human rights promotion and protection in these communities. The contracts as they stand are not aimed at openness to human rights promotion and protection; rather they are aimed at the positive regulation of foreign investment in the area of petroleum exploitation and exploration. It cannot be denied that the contracts involve the creation of frameworks whose aim is to place the parties under positive regulatory duties on a variety of issues, from the ownership of petroleum, to participating interests, to sharing of profit and reimbursement of expenses. However, the balance that is required under such frameworks is far more difficult to ascertain from a human rights perspective than that of simple liberalization requirements. It is therefore important to recognize the need for the transformation of the contracts, as will be discussed below, from being centred around the unifying principle of trade liberalization, so that they increasingly take on comprehensive provisions that encourage the promotion and protection of human rights.

Having said that, a framework, or regulatory philosophy, based on investment liberalisation appears more likely to lead to more fundamental questions of the significance of human rights in investment rules. This in turn has increased the external critique of the investment contracts, such as that provided in this article.

C.     Environmental Aspects of the Nigerian Petroleum Investment Contracts

1. The Operating Agreement between NNPC and TOPCON (Texaco Overseas)

There is little environmental protection in this investment contract. Looking through this petroleum investment contract, it will be noted that the agreement is silent on environmental protection, despite a brief sentence in 6.1.2 of the Operating Agreement which reads in full:

“The operator shall conduct all Joint Operations with utmost good faith in a good and workmanlike manner in accordance with good industry practice.”

The provisions of the Operating Agreement on, and the practice of, environmental protection show several weaknesses. The fact that the Operating Agreement only provides for good petroleum practice in terms of environmental protection means that substantive measures of environmental risks assessment are not required. Thus, this contract rather suggests a casual attitude towards environmental protection. In addition to the weaknesses of the environmental provisions in the contract, international oil companies in Nigeria have been operating under no real obligation to protect the environment.

In addition, from an environmental perspective, there is little in this contract that could serve environmental interests in these communities.  As stated earlier, provisions for the protection of the environment, i.e. for the balancing of environmental interests against commercial interests, are certainly not central to the agreement. For instance, it is a matter of concern from the fact that the environmental provisions in the contract are not placed central to the contract that they are not given the degree of significance that environmental concerns should be given if raised in those circumstances.

Further, the environmental provisions in the contract are not sufficiently comprehensive to protect the environment of the communities in the delta region during oil development. This is criticised here because the provisions do not contain any operational mechanism for carrying out the development of petroleum with the implementation of a precautionary approach. The failure of the contract to include comprehensive environmental provisions may, in part, be responsible for the environmental problems faced by these communities, as can undoubtedly be seen from the activities of international oil companies complained of, which has resulted in depriving the communities use and enjoyment of land and natural resources. However, without more detail as to the content of the environmental provisions in the contract, it is very difficult to ascertain the extent to which they have been complied with.

2. Participation Agreement Dated 12 January 2005

The Participation Agreement dated 12 January 2005 has displayed no concern for the social and ecological impact of petroleum development operations. This contract does not have any article dealing with environmental protection. What is referred to in this agreement reads as follows:

“No orders, notices or directives have been issued by the Government and no claims have been threatened or made by the Government or any other person or entity in respect of environmental matters (including, without limitations, allegations of environmental contamination, non-compliance with abandonment and reclamation obligations or non-compliance with any applicable laws or regulations pertaining to health, safety and the environment) in connection to the lease.[27]

This provision however, far from protecting from the negative impact of petroleum development, seems to be designed to assure the oil companies that they are not taking on or inheriting any liability in respect of prior complaints. As a result, provisions for environmental protection are given no coverage whatsoever. Since, quite astonishingly, no orders, notices or directives have been issued by the Government in respect of environmental matters, it may therefore not surprise us that the contract itself fails to specify either the environmental goals to be achieved or the several important requirements such as specific preventive or precautionary measures which one would otherwise expect. In order words, international oil companies may not be compelled to take their environmental obligations seriously. Moreover, the statement quoted above may signify that the government may only take steps to compel the oil companies to take their environmental obligations seriously when there is serious environmental pollution or degradation but there is no guarantee that the government would do so. This is due to the fact that there is nothing in the contractual provisions that guarantees that the government will do so. In short, the quoted provision is basically unenforceable in terms of protecting or promoting the environment of communities in the delta region because it contains no enabling definitions and regulations.

Having stated that there is little guidance in the contracts to serve effective protection of the environment, the contracts may also raise concerns of social awareness involved in petroleum development. This is due to the lack of participatory rights and consultation in the contracts, which could result in these communities not understanding the impact that may be caused by petroleum development they host. Moreover, the reason that policy makers have not included communities in matters relating to environmental protection is to avoid additional costs in these projects, which could act as a burden to the industry.[28] This reason should not be an excuse for policy makers to avoid transaction costs.  Otherwise, the provisions in Articles 7(1)(a)(xii) of the Participation agreement and Articles 6.1.2 of the Operating Agreement may make the right to participate in the oil development illusory since the provisions for environmental protection do not require the international oil companies to carry out petroleum development in participation or consultation with communities. Moreover, these facts have shown that polices of neo-liberalism have been fully well-established in these contracts since the concerns of environmental protection have not been conserved. This, in turn, may result in the petroleum development being carried out with little or no interaction with the communities. The fact that this is so may defeat the sole purpose of achieving sustainable development because public participation and consultation in petroleum development or any other developmental process contributes significantly to sustainable development. Hence, this will make petroleum development sustainably better; environmentally protective and reflective of the needs and values of communities where petroleum activities are carried out.

3. Key Issues in Assessing the Environmental Impact of the Contracts

It should be noted that environmental law and the law regulating foreign investment between states and multinational companies can be classified as sets of international laws or rules which contain specific regulations in particular areas of international law, in this case, environmental law on the one hand and international investment law on the other.[29]  On the one hand, the international environmental law framework or regime is based on a series of treaties setting out rights and obligations that are interpreted by various international judicial and human rights bodies,[30] while on the other hand, the investment regime is based on progressive series of international investment agreements including bilateral investment treaties, investment contracts and Free Trade Agreements, interpreted and enforced by their various investment dispute settlement bodies.[31] Both legal systems therefore contain their own legal instruments, whose rules and regulations are interpreted by their own legal expert bodies.

The interrupt, for want of a better term, between environmental law and investment regimes does limit the jurisdiction of both regimes. Whereas the international investment rules, on the one hand, concern investment related issues, with their treaties, agreements or contracts containing provisions related to the way in which international foreign investment is regulated and with its dispute settlement limited to deciding upon complaints which allege breaches of investment rules,[32] the same can be said for the human rights regimes and international bodies that decide on environmental concerns.[33]

Having said that, governments are not released from their international environmental obligations simply because they have to fulfil the obligations set out in the international law relating to foreign investment to which they are party, given that the environment can be impacted by foreign investment activities. This means that governments should take into account environmental protection when negotiating international rules regulating foreign investment in order to balance environmental protection against investor protection. In other words, tackle the neo-liberal tenets so that the challenging concerns of environmental protection are conserved.

Further, this assertion has implications for the international investment regime in that international investment rules must take into account environmental law and other social objectives.[34] Equally, relevant provisions of the Nigerian Investment Contracts should take into account environmental measures by inserting stringent standards for the protection of the environment of the oil producing communities. As discussed above, it would be apparent that the Nigerian international petroleum investment contracts have no stringent measures to protect and promote the environment of the oil producing communities.  What provisions there are for the protection of the environment are weak, as above stated. The contracts perhaps could be said to be in conflict with international environmental law obligations by not having such stringent measures inserted into the contracts. Perhaps the contracts created through tenets of neo-liberalism will stay on until taken apart.

Further, human rights violations are likely to occur because of the lack of comprehensive provisions within the contracts to protect and preserve the environment of communities in the Niger Delta. The examples of the environmental protection provisions in the contracts as given above do not impose the need for such protection, so the international oil companies can carry out their projects with full knowledge that they will not be breaching their obligations under the contract and without any need to take into account that they may be in violation of human rights. Underlying the statement of these issues is that it may be possible to interpret the contracts in a way that relieves the parties from the need to be proactive in the prevention human rights violations. In this scenario, we cannot simply wait for the obligations to protect and preserve the environment in the contracts to be clarified in dispute settlement proceedings because such issues may never arise, since the contracts have relaxed environmental measures.[35] These types of issues can be addressed through a number of different mechanisms, all of which require an explicit environmental law approach. Such an explicit environmental law approach may help to highlight some of the permitted measures which can be taken into account by the oil companies to protect and preserve the environment of these communities during oil exploitation.

4. Mechanism for raising Environmental Protection Standards through the Contracts

The arbitration clauses within the contracts require that disputes arising in the contracts be resolved in an arbitration tribunal.[36] This brings resolution of the dispute to a forum far beyond the reach of domestic legal systems, in this case the Nigerian legal system. Since the arbitration tribunals would be making decisions in respect of disputes, this section will raise questions about how the tribunals will consider a range of issues brought before it in terms of disputes involving environmental issues as a result of petroleum development.

Considering that there are environmental and human rights issues during petroleum development in the communities of the delta region, the tribunal may have to accommodate and deal with commercial matters that raise non-commercial issues. Such disputes may arise due to the above issues. It is due to this that we will raise the question whether the arbitration tribunal can bring environmental protection standards to bear in the reading of the contracts. A starting point for this type of analysis is to examine the jurisdictional competence of the tribunal if such issues were to arise. We will then move on to considering the extent to which environmental protection standards can be brought in during dispute settlement proceedings.

The fact that most international investment laws are drafted to deal only with the encouragement and protection of foreign investment, the investment treaty tribunals that deal with disputes in relation to foreign investment will be limited to claims under the investment treaty for the protection of the rights of the investors.[37]  So no claims can be brought to the tribunal alleging the breach of environmental protection and human rights which are not the subject of the investment treaties. The tribunals in this respect are therefore restricted to ruling on claims relating to investment protection. But the tribunals can make decisions on commercial and investment matters specified in the treaties that also involve non-commercial or investment issues such as environmental protection and human rights.

In effect this means that while claimants cannot bring cases on the basis of environmental and human rights claims, these arguments may be valid as part of defences to claims for alleged breach of the investment treaty. So, if foreign investors were to bring a case against a state government alleging the breach of their commercial interest in the treaty, then the tribunal will potentially rule on a defence by the state government that the measure or measures taken that have brought about this claim were justified on environmental and human rights grounds.[38] Therefore it is within the jurisdiction of the tribunal to rule on the defence that may be raised by state government that the measures were taken in order to promote and protect the environmental and human rights of their population. So it appears to be within the jurisdiction of the tribunals to rule on environmental and human rights issues which may be raised as defences by states accused of breaching their obligations under the investment treaty. As discussed here, if environmental and human rights issues were raised in this way in the tribunal, the tribunal would find itself competent to decide on the case in question.

Nonetheless, it appears that the Nigerian international petroleum contracts are quite different in this respect due to the fact that the contracts do in fact raise some issues of environmental protection during petroleum development which is evident in the communities.  In effect this means that the Nigerian government can bring claims on the basis of environmental protection where it feels that an operator’s execution of his operation has an adverse impact on the communities. So, for instance, a claim could be brought before a tribunal by the Nigerian Government alleging that the operator was carrying out the petroleum project in breach of its obligations to protect the environment. Accordingly, if this issue is raised in this way in the contract’s investment dispute settlement proceedings, the dispute settlement tribunals could find themselves competent to decide on the case in question. To do otherwise would be to make a wide range of the contracts’ obligations potentially unenforceable.

As stated above, there is a way in which the contracts can be made capable of being read in such a way as to raise environmental protection standards. Having said as much, the focus here will be upon the mechanism for raising environmental protection standards within the contracts. This mechanism will be described below, with a more detailed examination of the environmental protection provisions incorporated, because of their potential to promote and protect human rights during petroleum development. For instance, as we stated earlier, there is existing provision within the contracts for carrying out projects in accordance with the “international petroleum standard or industrial practice”. We will suggest, therefore, that environmental protection arguments can be raised before the arbitration tribunal, with the objective that the wording of the contracts be required to ensure environmental protection by detailing the required “international petroleum standards or industrial practice” in such a way as to incorporate the desired environmental protection measures.

Further, the focus will suggest that this provision is the primary mechanism available to us for ensuring that bona fide environmental protection measures can be found compatible with the contracts so that the improvement in environmental protection in the communities which is now required by international law can be made by introducing international petroleum standards or industrial practice into the contracts. To avoid a necessity for renegotiation of the contracts in their entirety, every effort should be made to read this provision into the contracts, in the light of relevant environmental law norms and standards, and to utilise it to provide the potential to protect and promote human rights.

The first step in this process of seeking to utilise environmental protection arguments within the contracts is to justify the assertion that a detailing of international petroleum standards or industrial practice can be used to raise these arguments during dispute settlement proceedings. It has been argued that the international petroleum standards or industrial practice should be taken to include evolving and internationally recognised environmental standards.[39] This provision however can enable the Nigerian Government to argue, in disputing settlement proceedings that the provision of international petroleum standards or industrial practice should also refer to international standards of environmental protection and promotion. Despite the fact the existing provision is vague (in that it does not provide for preventive measures) the Nigerian Government could still argue that the provision raises obligations to protect the environment when oil companies are carrying out petroleum development. If so, the arbitration tribunal could decide on the argument. Thus, the tribunal can undertake an assessment of the nature of the provisions, their human rights applicability, and finally an assessment of the pros of utilising them to justify human rights standards and norms. It appears, therefore, that the international petroleum standards or industry practice provision in the contracts do have some potential for the arbitration tribunal to raise environmental protection standards when faced with disputes in which human rights and environmental issues are raised.

In undertaking an assessment of the  good practice or international industrial practice provision in the contracts, it could be argued that the arbitration tribunal will interpret the provision in good faith in accordance with the ordinary meaning of the provision, and since the provision is said to refer to international environmental standards, this gives rise to a conception of petroleum development that includes the protection of the environment, rather than petroleum development judged only on the basis of economic criteria.

Although, in principle, it therefore seems possible to include environmental protection arguments within the contracts, in practice, there remain questions as to whether, in raising these issues in this way, they can be given their due weight in the process of the arbitration tribunal’s decision-making. It is therefore necessary to look at how the tribunal may decide on the international standards. Before looking at how the tribunal would decide on disputes that raise environmental and human rights issues, we will look at the construction of the environmental protection provision in order to ascertain how the tribunal may decide. The fact that the environmental protection provisions in the Nigerian international petroleum contracts do not provide any requirement or procedure for good international industrial practice or precautionary measures for petroleum development leads to a failure of the oil companies to take their environmental responsibilities seriously during petroleum development, which may result in environmental damage. As a result, the arbitration tribunals may award compensation in favour of the communities that are victims of such environmental damage. For instance, Nigerian courts have required that companies pay compensation to address the damage caused by the adverse impact of petroleum operations.  On this point Leader argues that the payment of compensation, even though it addresses the damage suffered by the communities, does not address preventing the damage itself. He further argues that there should be systems in place that explicitly spell out in detail environmental protection processes aimed at preventing damage that may occur from oil development.[40]

Having said that, it is pertinent to note that at present there are no cases where governments have brought claims against foreign investors for breaching environmental provisions in an international investment agreement. However, there are cases where foreign investors have brought claims against governments for taking measures that impact on their businesses. On the other hand, given the current situation in Nigeria where there are lots of environmental and human rights issues, the government has not yet brought any claim against an oil company for breach of environmental law and human rights, or taken any measure to protect the environment and human rights of the region that may result in a claim against them.

But in recent past, there have been a number of cases where human rights and environmental issues have arisen in international investment arbitrations, where governments have invoked these obligations as a defence for adopting measures that impact on investor rights under the investment agreement. In these cases, international arbitrators have not been consistent in relation to placing much weight on human rights defence raised by states during investment arbitration cases involving environmental and human rights issues. For instance, in the case of Santa Elena V. Costa Rica the tribunal held that the purpose of the expropriation did not affect the obligation of the state to pay compensation to the investor that was affected. The tribunal states as follows:

“While an expropriation or taking for environmental reasons may be classified as a taking for public purpose, and thus may be legitimate, the fact that the property was taken for that reason does not affect either the nature of the measure of the compensation to be paid for the taking. That is, the purpose of protecting the environment for which the property was taken does not alter the legal character of the taking for which adequate compensation must be taken.”[41]

In Metalclad v Mexico the tribunal held that the ecological decree that was promulgated by the municipality amounted to an indirect expropriation. This is because the regulatory measure taken by the state for the preservation of the environment and to protect health stopped the claimant from operating the landfill due to the hazardous impact such an operation would have on the environment.[42]

In another case, the interpretation of the expropriation provision has been assuaged such that the provision is not interpreted in a manner that may hamper the right of governments to impose new environmental measures to promote human rights. The approach taken in Methanex v United States is instructive in this regard. The tribunal in that case held that the ban on methanol by the state of California, which was taken to protect the water supply, was a legitimate measure for the protection of the environment and did not amount to expropriation.[43]

In Glamis v United States of America,[44] the arbitration tribunal held that the measures taken by the Californian government to protect the environmental and cultural rights of the indigenous peoples did not amount to expropriation and breach of fair and equitable treatment in the investment agreement. But it is pertinent to note that the decision of the tribunal was based on the technicalities in considering a breach of the provisions. In considering expropriation, the tribunal assessed the additional cost incurred by the claimant as a result of the measures taken by the Californian government. The tribunal came to the conclusion that the additional cost did not impact negatively on the claimant’s investment to constitution expropriation.  On the other hand, the tribunal, after considering the fair and equitable treatment, held that the measures taken to protect the environmental and cultural rights did not amount to a breach of the fair and equitable treatment provision. The reason was that   measures taken did not meet the threshold to prove a breach of the provision, which requires that the measures taken should be shocking and unfair. It should be noted here that the tribunal did not assess the fairness and equity of the measures adopted by the Californian government through other special areas of international law such as the ILO Convention on Indigenous Peoples to balance environmental and human rights issues. For instance, If the measures adopted by the Californian government which was for addressing environmental and human rights issues amounted to expropriation and met the threshold for a breach of the fair and equitable principle, would the tribunal have considered to interpret the investment agreement provisions in a way to balance the environmental and human rights issues with investment protection, since the measures adopted here was non-discriminatory? At this stage, it is premature to answer this question since we have not examined whether the tribunal has freedom to take into account other international law that could be relevant.

In Biwater v Tanzania,[45] similar issues are in contention as the Glamis case. The clamant in this case entered into a contract with the government of Tanzania to provide water services in the city of Dares Salaam. The claimant, however, could not meet the cost of providing water in the city.  As a result, the government of Tanzania terminated the contract of the claimant in order to remedy the decline of water supply in the city. The termination of the contract led to a dispute between Biwater and the government of Tanzania, which was brought before an international arbitration tribunal. The tribunal, having examined evidence and legal arguments of the parties held that Tanzania was in breach of the fair and equitable and expropriation provision of its international investment agreement with the United Kingdom, despite being aware that the government’s action to terminate the contract was taken in relation to its human rights obligation to ensure access to water for its citizens.

Recently, In Suez, Sociedad General de Aguas de Barcelona S.A., and Vivendi Universal v. Argentine Republic[46], the tribunal held that the government of Argentina breached the fair and equitable treatment provision of its BIT with the United Kingdom, Spain and France when it terminated the foreign investors contract to operate water services.  Even though human rights issues are at stake, the Tribunal rejected the notion that a government’s human rights obligations to assure its population the right to water trump its obligations to investors under BITs.

From the above decisions, it can be noted that international arbitration tribunals are reluctant in taking into account other special international law dealing with environmental protection and human rights when interpreting investor protection provisions in investment agreements, even when they are aware of the human rights issues involved in the dispute. The uncertainty about arbitral tribunals taking into account human rights in interpreting investor protection provisions may be due to the fact that most international investment agreements solely provide for investor rights protection without placing any corresponding obligations that could otherwise promote and protect human rights.[47] One commentator has stated that the imbalance in the international investment agreements freezes the human rights situation in the host state at the time the agreement was entered into.[48] The commentator further states that arbitral tribunals should not be responsible for undermining human rights because host states are responsible for ensuring human rights protection of their citizens, and since states do not advocate for human rights norms when entering into international investment agreements, arbitral tribunals are not obliged to take into account human rights when interpreting investor rights provisions in an investment dispute.[49]

However, some commentators have pointed out that Article 31(3) c of the Vienna Convention on the Law of Treaties (VCLT) will open the doors for human rights considerations in international investment disputes.[50] This provision gives the arbitral tribunal the right to take into account any relevant rule of international law application in the relations between the parties.  And since economic and social rights are always at stake in international investment disputes, which are mostly used as defences on the part of host state government for justifying a case made against them for breach of investment agreement provisions, tribunals can include the human rights treaties relating to economic and social rights on the basis of Article 31(3) c of the (VCLT).[51] This is based on the fact that economic and social rights are deemed to be erga omnes.[52] This view has not been fully accepted as one commentator states that human rights norm that should be taken into account by an arbitral tribunal should be human rights norms that have attained the status of jus cojen, such as slavery, genocide and degrading treatment.[53] Let us say that the former is universally accepted, and an arbitration tribunal has found that a host state’s environmental and human rights obligations are applicable to an investment case there could still be an issue before the tribunal in relation to which obligations of the state it will give priority to.[54]

However, in more recent decisions tribunals have taken into account environmental and human rights obligations of states, but there are still divergent decisions as to whether states obligations to protect investor rights should trump over their human rights obligations or whether their environmental and human rights obligations should trump the obligation to protect foreign investment. In Lemire v Ukraine,[55] the tribunal stated that the protection of foreign investment must be balanced against the legitimate right of Ukraine to regulate in public interest. Also, in AWG V Argentina,[56] the tribunal concluded that in interpreting the fair and equitable treatment, which is an investor protection, the tribunal must balance the legitimate expectations of the foreign investor with Argentina’s right to regulate in public interest. Despite these reflections, the tribunals held that the respondent states have breached the fair and equitable treatment provision.[57] On the other hand, the tribunal in Chemtura v Canada assessed Canada’s international environmental obligations before concluding that the measures taken by the Canadian government to ban the use of lindane for environmental concerns did not amount to a breach of Chemtura’s rights under the North American Free Trade Agreement (NAFTA).[58]

Following the above, we may humbly submit that tribunals have the freedom to take into account other international law principles when interpreting investment treaty provisions on the protection of foreign investment. Besides these considerations, in the cases above, there is still public-private split between tribunals that support human rights and the ones that uphold foreign investment protection entrenched in international investment treaties. In addition, in trying to resolve this concern, it has been recommended that these second generation human rights norms such as economic and social rights should be included in international investment agreements.[59]

Having said that, it is pertinent to note that the Nigerian International Petroleum Contracts examined above have incorporated second generation human rights norms.  Even though it has been stated above that it is likely that the tribunal will uphold environmental and human rights norms, we are yet to see any dispute in that regard. Nevertheless, it is pertinent to note that this article is focused on environmental and human rights prevention rather than payment of compensation as a result of petroleum activities. Hence, what is advocated here is to examine ways in which these concerns can be mitigated in these communities.

IV. Indigenous Peoples’ Rights Application

Having examined the Nigerian investment petroleum contracts, it can be seen that they may have contributed to the adverse impact of petroleum development in the oil producing communities of the Niger Delta. The examination of the contracts, however, shows that the exclusive ownership of petroleum resources by the Nigerian government and the international oil companies deprive the communities of their rights to petroleum resources within their territories. On the other hand, the relaxed environmental measures in the contracts may have resulted in environmental degradation, depriving the communities of natural resources central to their survival. Since this article will discuss the extent to which the indigenous peoples’ rights to land and natural resources will address the adverse impact of foreign investment in petroleum development on the indigenous oil producing communities of the Niger Delta, it will be primarily based on those rights that are codified in international conventions, covenants and declarations relating to indigenous peoples’ rights, as well as other human rights instruments, which have established indigenous peoples’ rights to land and natural resources in international law. The body of rules constituting rights of indigenous peoples as contained in the International Labour Organisation (ILO) Convention 169,[60] United Nations (UN) Declaration on Indigenous Peoples,[61] International Covenant on Civil and Political Rights[62] and the African Charter on Human and Peoples Rights[63] contain rights that set the standards for the protection of indigenous peoples’ rights. Therefore, the provisions contained in these international instruments could serve as a driver for effecting policy changes necessary to address the concerns of oil producing communities in Nigeria. However, the ILO Convention has no binding effect in Nigeria because the country has not ratified ILO Convention 169. Additionally, the UN Declaration’s effectiveness is only of persuasive nature. Even though this is the case, these instruments may offer ideas for quelling the concerns of these communities. On the other hand, the African Charter on Human and Peoples’ Rights and the International Covenant on Civil and Political Rights are important in this regard, since Nigeria is a party to them.

It is pertinent to note that indigenous peoples have established, and, for centuries, practiced a sustainable way of life which is linked to their lands and resources on the lands, and a necessary condition for their survival.[64] This relationship between indigenous peoples and their land and resources has been enshrined in international human rights instructions. For instance Article 26 of the UN Declaration provides that indigenous peoples have rights to the lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired and they also have the right to own, use, develop and control the lands, territories and resources by reason of the traditional ownership they possess. The Article also provides that states should give legal recognition and protection to these lands, territories and resources. Further, in a bid to ensure protection and sustainability of indigenous peoples livelihood and resources, Article 32, significantly, lays down an obligation for states to consult and cooperate with the indigenous peoples concerned before engaging in any project affecting their lands and territories and other resources, particularly in connection with the development, utilization or exploitation of mineral, water or other resources. It thus enshrines rights in consultation, decision-making and benefit-sharing.

The International Covenant on Civil and Political Rights also recognises the rights of all peoples to freely dispose of their natural wealth and resources and to be secure in their means of subsistence.[65] The Human Rights Committee, in its concluding observations on Canada, has applied this right to indigenous peoples:

“The Committee emphasizes that the right to self-determination requires, inter alia, that all peoples must be able to freely dispose of their wealth and natural resources and that they may not be deprived of their own means of subsistence. The Committee recommends that decisive and urgent action be taken towards the full implementation of the Royal Commission on Aboriginal Peoples’ recommendations on land and resource allocation. The Committee also recommends that the practice of extinguishing inherent aboriginal rights be abandoned as incompatible with article 1 of the Covenant.[66]

Accordingly, the Committee on the Elimination of all Discrimination provides special measures for the protection of the rights of indigenous peoples over their wealth and natural resources. The Committee called upon states to ensure the rights of indigenous peoples to own, develop, control and use their lands and resources and where they have been deprived of these lands and resources without their consent, states should take steps to return these lands.[67] On the other hand, Article 27 of the Covenant also relates to land and resources rights of indigenous peoples. The office of the High Commissioner on Human Rights, in its general comment to include true members of indigenous communities constituting a minority, confirmed the scope of Article 27.[68] This shows that the term “peoples” in the Covenant includes indigenous peoples and communities. With regard to the exercise of cultural rights protected under Article 27, the Office of the High Commissioner observes that culture manifests itself in many forms, including a particular way of life associated with the use of land resources, especially in the case of indigenous peoples. On the order hand, in order to safeguard indigenous community’s land and natural resources which they depend on for their survival, the state must ensure effective participation of indigenous communities regarding development, investment or exploitation that affect their traditional land and resource use. This requirement is provided within the framework of Article 27 of the Covenant. The United Nations Human Rights Committee has recognised the imperative of ensuring indigenous peoples’ effective participation in decisions that may affect their land and resource use.[69]

In addition, the participation process with indigenous peoples stipulated above includes their right to benefit from economic activities conducted on their lands relating to sub-surface resources.  Consultation with indigenous peoples means that they shall participate in the benefits derived from sub-surface resource exploitation activities. In Lansmann v Finland the Human Rights Committee noted that economic activities must, in order to comply with Article 27 of the Covenant on Civil and Political Rights, must be carried out in a way that the Sami people continue to benefit from their natural resources.[70] Further, the second progress report of the U.N. Sub-Commission land rights quotes from a Canadian government statement as support for the idea that indigenous peoples, as well as the world at large, benefit when indigenous peoples are guaranteed participation in land, water, wildlife and environmental management…; financial compensation; mineral resource revenue-sharing; specific measures to stimulate economic development; and a role in management of heritage resources.[71] Given the protection of indigenous peoples’ right to land and natural resources in international law, it is the obligation of states to provide the necessary legal certainty for protecting indigenous peoples’ land and natural resources.

Further, Article 14 of ILO Convention 169, protect the rights of indigenous peoples to ownership and possession of land which they traditionally occupy, as well as natural resources pertaining to land.  On the other hand, articles 15(2) and 6(2) of ILO Convention 169 also provide that indigenous peoples should be involved in the management and sharing of benefits from resource development in circumstances where the state retains ownership of the mineral resources. These provisions require consultation with an indigenous community with any decision that may affect the community, including decisions to grant concessions to develop natural resources including sub-surface resources. Consultation is required to enable an agreement to be reached with indigenous peoples in order to avoid interference with indigenous peoples use and enjoyment of their land and resources. The required consultations with indigenous peoples as provided in Articles above must provide indigenous peoples with a full and fair opportunity to be heard and genuinely influence the decisions affecting their lands. For instance, there is jurisprudence from the Colombian Constitutional Court, which held that consultation involves full disclosure regarding proposed project; full disclosure of the possible effects of the proposed project; the opportunity to discuss the proposed project with the indigenous community; the opportunity to have their concerns heard to take a position on the viability of the project.[72] In addition, to safeguard the use and enjoyment of indigenous peoples land and natural resources, the consultation process must allow indigenous communities participate in the benefits derived from such mineral resource development. Additionally, the consultation process is significant in protecting the environment of these communities, which will in turn preserve their means of livelihood. To reinforce this obligation, the emerging jurisprudence from the Inter-American Court of Human Rights in Saramaka People v Suriname[73] stated that before natural resource development can be carried out there should be prior environmental and social impact assessment. These safeguards are intended to preserve, protect and guarantee the special relationship that the Saramaka community have with their land, which in turn ensures their survival as indigenous peoples.

In the African Charter of Human and Peoples’ Right[74] the right of indigenous peoples to their land and natural resources is also given wide recognition.  In particular, Article 21(1) of the Charter guarantees the right of peoples to freely dispose of their wealth and natural resources and that as such, that right shall be exercised in the exclusive interest of communities. There is also article 14 which guarantees the right to property; and Article 24 guarantees to a general and satisfactory environment favourable for their development. For example, recent jurisprudence from the African Commission on Human and Peoples Rights visible in the CEMIRIDE decision[75] used the above provisions in the Charter to set guidelines for state recognition of the right of indigenous peoples to own and use land and natural recourses as well as sub-soil resources within their traditional territories.

However, there is a challenge that has remained unresolved in the current efforts of international law on this subject. This challenge relates to the definition of who are indigenous peoples in the eyes of international law. The concept of indigenous peoples is complicated by difficulties in the definition of who are indigenous peoples, including the fact that an attempt to define indigenous peoples has been abandoned in the United Nations.[76] Although the traditional term “indigenous peoples” should apply to peoples living in territories that have experienced European settlement,[77] there is controversy as to whether the definition can be extended to indigenous groupings that have not experienced colonisation but are nevertheless groups with a clear self-identification who have experienced marginalisation, exclusion and disposition of their traditional lands along with disregard of their other rights. However, the current understanding of indigenous peoples which is reliant on groups’ self-identification and cultural distinctiveness have somewhat resolved the controversy surrounding who indigenous peoples are.[78]

In considering Nigeria, it is necessary for the rights of indigenous peoples to land and natural resources to serve as a medium for addressing the plight of the communities of the Niger Delta. Indeed, it is a fact there are over 250 communities in Nigeria that have maintained their self-identification and cultural distinctiveness.[79]

V. The Potential of the Indigenous Peoples’ Rights Approach to Enhancing the Situation of Local Communities in the Niger Delta

As shown earlier in the article, indigenous peoples’ effective and group rights to land and natural resources are fundamental to their economic and social development, livelihoods and sustenance. In this regard, there will be increased economic welfare and sustainable development if these rights are protected during petroleum development. This, in turn, will help detect the unacceptable negative social consequences of foreign investment in petroleum development in these communities in order that such consequences can be acted upon. Although the regime relating to foreign investment in petroleum development in Nigeria poses loopholes that may be responsible for the basic issues faced by the communities in the Niger Delta, the standards set in indigenous peoples’ rights instruments can be effective in assuring benefits during petroleum development. There is optimism that this approach will have increased benefits in terms of poverty alleviation and sustainable development. This is because the approach is a positive indicator of poverty alleviation. It allows petroleum development to develop programs that will allow the communities to receive revenues from their petroleum resources which will assist the creation of a social infrastructure, taking into account the anticipated environmental impacts to achieve sustainable development in order to protect the resources of these communities that guarantee their livelihoods.

The final report of the World Bank Extractive Industries Review also states that in order to contribute to poverty alleviation through mineral development, there should be recognition of and effective guarantees for the rights of peoples, to own, control and manage their lands, territories and resources.[80] This means that the report advocates the recognition of the rights of indigenous peoples to land and resources to enhance poverty alleviation during natural resource development. The report, however, highlights the ways in which indigenous communities that receive these benefits can reduce poverty. To ensure these benefits, the report states that:

  • Companies should consult with communities that are directly affected by projects in order to obtain their free prior and informed consent,
  • There should be revenue sharing with local communities
  • There should be incorporation of public health components in all extractive industry projects
  • NGOs should build the capacities of affected communities…
  • There should be use of poverty indicators that are monitored systematically.[81]

These steps focus on the ways poverty alleviation can be achieved. For instance, in terms of companies’ consent process with communities directly affected by mineral resource development, the potential benefits are due to identification of environmental management systems which can have a positive impact on the ability of the companies to carry out the projects in an environmentally friendly manner. Thus, environmental awareness is key to achieving poverty alleviation through sustainable development.[82] The sharing of revenue to communities also has potential benefits that can lead to poverty alleviation. For instance, revenues received could be used in infrastructure creation.[83] Also, the need to build the capacities of affected communities ensures the effective participation of indigenous communities that leads to sustainable development.[84] Such steps as these set out in the World Bank Extractive Industries Review are a good way for implementing indigenous peoples’ rights to land and natural resources as required by international law. Most fundamentally, there is the potential for a positive effect on poverty reduction with obvious protection in preventing poverty in oil communities in Nigeria during petroleum development.

The above recognition of the potential benefits of using indigenous peoples’ rights to address concerns of communities in the Niger Delta does not, however, mean that an explicit indigenous peoples’ rights analysis has no value for critiquing conventional petroleum development in Nigeria. We will therefore go on to describe some grounds for using the standards set in indigenous rights instruments relating to land and natural resources as a potentially important methodology for analysing some of the failings and potential failings of the current Nigerian Petroleum Contracts.  From an economics perspective, foreign direct investment is most likely to promote economic growth, which in turn is a requirement for poverty alleviation.[85] And since mineral resource development in developing countries comes from foreign direct investment, which is a source of economic growth, then mineral resource development at least should have a potential to contribute to poverty alleviation. On the other hand, recent studies have found that even though there are direct gains, they yield relatively little or no economic growth. The studies have noted that though extracting minerals increases the income of resource-rich countries following the development of their resources, there is still poverty in these countries.[86] This is why we tend to conclude here that the mineral resources development on its own must be tied to other polices such as the indigenous peoples’ rights approach in order to yield strong rates of poverty alleviation and sustainable development.[87]

Even more interestingly, perhaps, from a social justice perspective is to look at the correlation between the development of mineral resources and poverty alleviation. Here the hypothesis is that foreign direct investment in resource development promotes economic growth, and that growth reduces poverty, so that there is a link between the development of mineral resources and poverty reduction. It has also been stated that investment is a stimulus to economic growth, which promotes poverty reduction. However, such statements will be criticised here on grounds showing just how difficult it is to determine the relationships between investments in mineral resource development and even easily conceptualised and defined social justice issues, such as poverty reduction and sustainable development, due to the situation of the oil producing communities in the Niger Delta. Examples of social justice issues in the Niger Delta suggest that investments in the development of natural resources do not guarantee effective poverty reduction and sustainable development.

What this article may conclude is that since the development of natural resources is said to promote economic growth, there is a need for an indigenous peoples’ rights approach to ensure that the development of natural resources works in a way that is advantageous to all. Importantly, natural resource development pursued by conventional methods in the Nigerian international petroleum contracts, which do not include the standards set in indigenous peoples’ rights relating to mineral resource development, may not enhance the conditions of communities in the Niger Delta. Even in situations where the overall picture of natural resource development is one that can bring growth and prosperity, and even if the distribution of income from natural resources tends to include the poorest communities, there will still be losers during and as a result of the process.

It is clear, therefore, that the correlation between natural resource development on the one hand and poverty reduction and sustainable development on the other hand is difficult to perceive, and the justification of natural resource development on grounds of resulting poverty reduction alone is fraught with difficulties because of the evidence portraying the social justice issues in communities of the Niger Delta region. Thus, using the standards set in indigenous peoples’ rights instruments is of added value because they focus on those distributive social justice issues that are not easy to identify utilising the conventional natural resource development model in the contracts that does not accommodate indigenous peoples’ rights.

VI. Concluding Remarks

It is important to point out that the argumentation presented here in favour of considering the possibility of using the standards set in indigenous peoples’ rights instruments in addressing the adverse impact of petroleum development in communities of the Niger Delta of Nigeria here has been deliberately limited in scope in relation to Nigerian international petroleum contracts. First, this article has shown that the concept of indigenous peoples’ rights to land and natural resources have been recognised internationally via international instruments concerning indigenous peoples.  However, the challenges relating to the question of definition of indigenous peoples have been resolved given the development of a practical definition of the beneficiaries of the rights. This will ensure that the rights do not exclude some of the susceptible communities that need protection from mineral resource development. Secondly, this article shows the rights of indigenous peoples to land and natural resources and the concerns in the Nigerian international petroleum contracts are reconcilable. Certainly, the international obligations, particularly human rights and environmental protection in the indigenous peoples’ rights have made these rights acceptable in the context of petroleum development. This, in turn, could serve as instruments that will address the concerns of communities in the Niger Delta.

That said, further strategies in the contracts should portray equal concern for the promotion and protection of the environment. These contracts must be focused upon precautionary and comprehensive provisions for persevering and protecting the environment. In addition, the contracts should take an approach that involves the oil producing communities in participating in decision-making during petroleum development. A commitment in the contracts should place an obligation on the government of Nigeria and foreign investors in the petroleum industry to consult with indigenous peoples concerned before engaging in any project affecting their lands and resources. With respect to the rights of their lands and natural resources including sub-soil resources such as oil, the contracts should have provisions that give these communities the rights to their lands and natural resources. Even if the Nigerian Government retains ownership, these communities should at least have some form of ownership and control in these resources. A commitment in the contract should recognise rights of ownership to indigenous communities’ ancestral lands and natural resources and that they should be consulted prior to any developmental project affecting their lands and resources in order for an agreement to be reached on relocation and fair compensation and where possible, with the option of return to their lands. All these factors should then be considered by the Nigerian Government when negotiating international petroleum contracts or revising existing ones. Having said that, it is also important to note that this article is only limited to assessing the extent to which indigenous peoples’ rights to land and natural resources can be used to resolve the adverse impact of the contracts on the communities during petroleum development. A detailed research needs to be conducted on the framework of indigenous peoples’ rights as a way of resolving the concerns in these communities. This will assist us assess the implications of the framework in these communities.

On the other hand, even though the Nigerian government abstained from voting in support of the UNDRIP[88]; the rights of indigenous peoples have become a distinct concept of customary international law.[89]  Also, the Nigerian government has a duty to apply the concept of indigenous peoples to the situation in the Niger delta communities since it is a party to the African Charter on Human and Peoples Rights as well as the ICCPR, which provide protection for indigenous communities.

It may also be necessary for a broader legal reform in petroleum legislation in Nigeria. This will however provide consistency between the contracts and the legislation regulating petroleum in Nigeria. There is evidence to show that the Nigerian government is tackling the concerns of the communities. The Nigerian government has agreed to spend 10 percent of all revenue directly in the oil producing communities of the Niger Delta as part of the plan to quell the socio-economic problems in the region.[90] Perhaps one of the most serious tests in gauging the success of spending 10 percent of the oil revenue will be how the government will implement this plan to achieve the objective of quelling the socio-economic problems. It must also be noted that the fears of misappropriation of funds in Nigeria is not different from the present believe that government officials would misappropriate the funds and, in this case, the allocation of 10 percent may turn out to have little impact on the oil producing communities in terms of participating in the benefits derived from oil development.[91]

However, it is hoped that the type of analysis provided here may prove a starting point for consideration of using the standards set in indigenous peoples’ rights instruments within the Nigerian international petroleum contracts.

 


* LLB (Hons) LLM PhD, Lecturer, School of Law, University of Leeds, England, United Kingdom; Contributor, Oxford University Press Reports on International Investment Law, Oxford, England, United Kingdom.

[1] See Doak Bishop, International Arbitration of Petroleum Disputes: The Development of a Lex Petrolea, 23 YBCA. 1131 (1998); Aktham Alkholy, Arbitration in Energy Disputes, 2 JAB. 46 (2000).

[2]  Bishop, Supra, note 1&  Alkholy,  Supra, note 1

[3] It is a known fact that international oil companies explore oil and gas in regions that are inhabited by indigenous communities. For instance, a lot of exploration activities take place in the South American Amazons inhabited by indigenous communities.

[4] See generally UN Development Programme-Nigeria, ‘Niger Delta Human Development Report’ (UNDP 2006), 78-120

[6] UN Development Programme-Nigeria, supra note 4.

[7]  Id. at19.

[8] Id.

[9] Id. at73.

[10] Id; also, Shell has recently admitted liability to massive oil spills in the Niger delta region of Nigeria that have destroyed livelihoods in the region. For detailed information, see John Vidal, Nowhere and no one has escaped: the Shell oil spills that ruined Nigerian lives, The Guardian, August 3, 2011 18.

[11] UN Development Programme-Nigeria, supra note 4, at 111-120.

[12] See Muthucumaraswamy Sornarajah, Mutations of Neo-Liberalism in International Investment Law, 3(1) Trade, Law and Development, 203 (2011).

[13] Operating Agreement Between Nigerian National Petroleum Corporation And TOPCON Company (Texaco Overseas) 1988, Barrows Company (ed), North African Oil Law and Concession Contracts, Vol 1(Petroleum Legislation Inc. New York, 1959) (on file with author).

[14] Participation Agreement Dated 12 January 2005 for Oil Mining Lease No. 113 Among Yinka Folawiyo Petroleum Company Limited, Syntroleum Limited, Lundin Petroleum B.V, Palace Exploration Company, Challenger Minerals Inc., Providence Resources P.L.C and Howard Energy Co., Inc. January 12, 2005, (Barrows Company) (ed), North African Oil Law and Concession Contracts, Vol 1(Petroleum Legislation Inc. New York, 1959) (on file with author).

[15] Participation Agreement, supra note 14, preamble.

[16] Id. at art 2.1(a).

[17] Id.

[18] Id. at art 2.1(b)

[19] Operating Agreement, supra, note 13, preamble. The participating interests of the parties shall be NNPC 60 percent TOPCON 20 percent and Chevron 20 percent.

[20] Id. at art 13.1

[21] For Example, see the Agreement for the Encouragement and Reciprocal Protection of Investments (Nigeria-Netherlands), art 1(a)(v), and art 6, UNCTAD Investment Instruments Online.

[22] Participation Agreement, supra note 14, at  art 2.2 (a)(i)

[23] Id. at art 2.2(B)(ii).

[24] Operating Agreement, supra note 13, at art 6.1.1

[25] See M.A. Heller, The Tragedy of the Anticommons: Property in the Transition From Marx to Markets, 111 HLR. 622-687 (1998).

[26] Sornarajah, supra note 12, at 204

[27]Participation Agreement, supra note 14, at art 7(1)(a)(xii)

[28] See R.H. Coase, The problem of Social Cost, 3 The Journal of Law and Economics. 1-44 (1960).

[29] The emergences of different specialist regimes within international law have been deemed to be fragmentation of international law. For a detailed discussion of fragmentation of international law see International law commission, 58th Session, Report of the Study Group of the International Law Commission, Fragmentation of International Law, 13, April 2006 8, UN Doc. A/CN.4/L.682 [hereinafter Consolidated Report] (Finalized by Martti Koskenniemi). See also International law Commission, 58th Session, Report of the Study Group of the International law Commission, Fragmentation of International Law: Difficulties Arising from the Diversification and expansion of International Law, 18, July 2006 6, U.N. Doc. A/CN.4/L.702 [hereinafter ILC 58th Session Report].

[30] See generally Philip Sands, Principles of International Environmental law, (Cambridge University Press 2003)

[31] See generally D. Bishop, J Crawford and M Reiman, Foreign Investment Disputes, Cases, Materials and Commentary317 (Kluwer Law International 2005).

[32] Id.

[33] For example the African Commission on Human and Peoples Rights entertained a case brought against the Nigerian Government and Shell Petroleum Development Company for the violation of the environmental rights of the Ogoni Peoples during oil production. See the Social and Economic Rights Centre (SERAC) v. Nigeria, AHRLR, 60 (2001). See also Case Concerning Pulp Mills on the River Uruguay (Argentina v. Uruguay) Judgement of April, 204 ( 2010) where the International Court of Justice held that for the purposes of preserving and protecting the environment with respect to activities which may be liable to cause environmental harm, parties must carry out environmental impact assessment.

[34] Recent developments have shown that state governments are beginning to take environmental protection very seriously in investment treaty law. For instance, Agreement for the Promotion and Protection of Investment (Canada – Peru), art 11,November 2006, http://www.Dfait-maeci.gc.ca/tna-nac/documents/Canada-Peru10nov06-en.pdf; Agreement Concerning the Encouragement and Reciprocal Protection of Investment (United States-Uruguay), art 12, October 2004, 2005 44 ILM 268. These treaties provide that:

‘Parties recognize that it is inappropriate to encourage investment by relaxing domestic health, safety or environmental measures. Accordingly, a party should not waive or otherwise derogate from, or offer to waive or otherwise derogate from, such measures as an encouragement for the establishment, acquisition, expansion or retention in it territory of an investment of an investor. If a party considers that the other party has offered such an encouragement, it may request consultations with the other party and the two parties shall consult with a view to avoiding any such encouragement. On the other hand, with respect to the scope of expropriation, the Canadian and US BIT provides in its Annex a guideline for the interpretation of the indirect expropriation provision, which is the most controversial issue in investment treaty arbitration. The Annex states that the determination of whether a measure or series of measures constitute an indirect expropriation requires a case-by-case, fact-based inquiry that considers, among other factors, the economic impact of the measure or series of measures, the extent to which the measure or series of measures interferes with distinct, reasonable investment-backed expectations and the character of the measure or series of measures. The Annex further states that in rare circumstances, such as when a measure or series of measures is so severe in the light of their purpose that they cannot be reasonably viewed as having been adopted and applied in good faith, non-discriminatory measures of a party that are designed and applied to protect legitimate public welfare objectives, such as health, safety and the environment, do not constitute indirect expropriation.’ See Annex B.13 (1) Canadian BIT and Annex B of the US BIT.

Moreover some states have also formed task forces to review their investment treaty polices towards promotion and protection of foreign investment in order to ensure that they are in harmony with social objectives. Damon Vis-Dunbar, South African Trade Department Critical of Approach Taken to BIT-Making (15 July 2009, Investment Treaty News), http://www.investmenttreatynew.org/cms/news/archive/2009 ; See also Muthucumaraswamy Sornarajah, The Retreat of Neo- Liberalism in Investment Treaty Arbitration, in The Future of Investment Arbitration 273-296 ( Rogers and Alford eds Oxford University Press Oxford, 2009). For the protection of human rights in investment contracts, see John Ruggie, Principles for Responsible Contracts: Integrating the Management of Human Rights Risks into State-Investor Contract Negotiations: Guidance for Negotiators, UN Doc. A/HRC/17/31/Add.3 (25, May, 2011).

[35] It has been argued that since states expressly agreed to investment agreements that do not provide for human rights protection of their citizens, hence, it is the responsibility of states to take greater care in protecting the rights of their citizens. See generally James .D. Fry, International Human Rights Law in Investment Arbitration: Evidence of International Law’s Unity, 18 Duke JCIL. 77 (2007).

[36] Participation Agreement, supra note 14, at art 12.2  provides that Any and all claims, demands, causes of action, disputes, controversies and other matters in question arising out of or relating to the Agreement, including any question regarding its breach, existence, validity or termination, which the parties do not resolve amicably within a period of thirty days, shall be resolved by arbitration…; Operating Agreement, supra note 13, art 21 provides that in case any dispute shall at any time arise between two or more of the parties with respect to interpretation application or effect of any provision of this agreement and if the parties hereto fail to settle such dispute by amicable agreement then either party may serve on the other a demand for arbitration…

[37] See generally August Reinisch, Standards of Investment Protection, (ed. Oxford University Press Oxford 2008). See also Ryan Suda, Effect of Bilateral Investment Treaties on Human Rights Enforcement and Realization (2005), http://www.law.nyu.edu/global/workingpapers/2005/ECM_DLV_015787.

[38] See Surya Subedi, International Investment Law: Reconciling Policy and Principle, 165-171 (Hart Publishing. 2008).

[39] Sheldon Leader, Human Rights, Risks, and New Strategies for Global Investment, 9 JIEL (3), 682 (2006).

[40] Id. at 693.

[41]  ICSID Case No. ARB/96/, 1 para 71-72 (2000) http://www.worldbank.org/icsid/cases/santaelena_award.pdf.

[42] ICSID Case No. ARB (AF)/97/1, Award, paras 102-112 (2000) http://ita.lawunic.ca/news.htm .

[43]  UNCITRAL, Arbitration Final Award, para 410 (2005) http://ita.lawunic.ca/news.htm .

[44]  UNCIRAL, Arbitration Final Award (2009) http://ita.lawunic.ca/news.htm.

[45]  ICSID Case No ARB/05/22, Award (2008) http://ita.lawunic.ca/news.htm.

[46]  ICSID Case No. ARB/03/19, Award(2010) http://ita.lawunic.ca/news.htm.

[47] For more information on this, see http://www.unctadxi.org.

[48] James Fry, Supra note 35, at 103.

[49] Id, at 107. See also Moshe Hirsch, Interactions Between Investment and Non-Investment Obligations in International Investment Law ( November 26, 2006) http://www.ssrn.com/abstractid=947430

[50] Bruno Simma, Foreign Investment Arbitration: A Place For Human Rights? 77ICLQ.  584-585 (2011); see also Anne van Aaken, Fragmentation of International Law: The Case of International Investment Protection  Finnish YBIl (2008).

[51] Id. at  585-591

[52] Id.

[53] James Fry, Supra note 35, at109.

[54] Bruno Simma, Supra note 50, at 591-592.

[55] ICSID Case No. ARB/06/18, Decision on Liability, para. 273 (2010) http://ita.lawunic.ca/news.htm.

[56] ICSID Case No. ARB/03/19, Decision on Liability, para. 336 (2010) http://ita.lawunic.ca/news.htm.

[57] Lemire v Ukraine, Supra note 55, at para. 247; AWG V Argentina, Supra note 56, at para. XII

[58] Chemtura v Canada  UNCITRAL (NAFTA) Award, paras. 138-139 (2010) http://ita.lawunic.ca/news.htm.

[59] Bruno Simma, Supra note 50, at 593-596.

[60]  Indigenous and Tribal Peoples Convention, 1989, adopted 27 June 1989 entered into force 5 September 1991, ILO No. 169.

[61] United Nations Declaration on the Rights of Indigenous Peoples, adopted 13 September 2007.

[62] International Covenant on Civil and Political Rights art. 1(2), adopted 16 December, 1966 came into force 23 March 1976, U.N.T.C.

[63] The African Charter of Human and Peoples Rights, January 1981 entered into force 21 October 1986, 1982 21 ILM 59-8.

[64] See Rodolfo Stavenhagen, Report of the Special Rapporteur on the Situation of Human Rights and Fundamental Freedoms of Indigenous People, U.N. Commission of Human Rights, UN Doc. E/CN.4/2002/97, paras. 39-40 (2002).

[65] International Covenant on Civil and Political Rights, Supra note 62, at Art 1(2).

[66] Concluding Observations of the Human Rights Committee: Canada UN Doc CCPR/C/79/Add.105 para 8 (7 April 2009); Concluding Observations of Human Rights Committee: Mexico UN Doc CCPR/C/79/Add.109 para 19 (27 July 1999); Concluding Observations of the Human Rights Committee: Norway UN Doc CCPR/C/79/Add.112 paras 10 & 17 (1 November 1999).

[67] Committee on the Elimination of all Racial Discrimination General Recommendation XXIII (51) Concerning Indigenous Peoples (18 August 1997) UN Doc A/52/18 annex v at 122 reprinted in Compilation of General Comment and General Recommendation adopted by Human Rights Treaty Bodies (2003) UN Doc HRI\GEN\1\Rev 6 at 212 para 5.

[68]UNCHR General Comment 23: The Rights of Minorities (Art 27) UN Doc CCPR/C/21/REV/Add.5 para 3.2 (8 April 1994). The Human Rights Committee in a case in this regard has confirmed the General Comment. See R.L. et al. V Canada Communication, No. 358/1989 (28 November 1989) UN Doc, CCPR/C/40/D/358/1989 para 3.7.

[69] UNCHR General Comment on Art. 27, supra note 68, at para 7

[70] Communication No.511/1992. U.N. Hum. Rts. Comm., CCPR/C/52/D/511/1992 (Lansmann 1) para 9.8 (1994)

[71] Indigenous Peoples and their relationship to Land: Second progress report on the working paper prepared by Mrs. Erica-Irene A Daes, Special Rapporteur, U.N. Sub-Commission on Prevention of Discrimination and Protection of Minorities, U.N. Doc.E/CN.4/Sub.2/1999/18) para 95( June 1999).

[72] See Sentencia SU-039 Febrer0 3 de 1997 [Corte Constitutuional] 655(Colom.).

[73] Inter- American Court of Human Rights, Case of Saramaka People v Suriname (Judgment of 28 November 2007).

[74] The African Charter of Human and Peoples Rights, Supra note 63.

[75] Centre for Minority Rights Development (Kenya) and Minority Rights Group International on behalf of Endorois Welfare Council v Kenya Communication 276/2003 where the Commission found that the Endorois Community have property rights to their traditional lands and natural resources including sub-soil resources within their traditional lands that are protected by African Charter of Human and Peoples Rights. The Commission also noted that in order to guarantee property rights, the government of Kenya must ensure that there is effective participation of the Endorois community regarding any investment in exploration of natural resources within Endorois territory. The Commission, however, stated that effective participation includes reasonable benefit from exploration of sub-soil resources and prior environmental assessment, which will preserve the relationship that the Endorois community have with their territory, which in turn ensures their survival as a people.

[76] See Standard–Setting Activities: Evolution of Standards Concerning the Rights of Indigenous Peoples, Working Paper by the Chairperson-Rapporteur, Erica-Irene Daes on the Concept of Indigenous Peoples’ UN Doc.E/CN.4/SUB.2/AC/1996/2.

[77] This traditional attempt to define indigenous peoples within the United Nations are as follows:

Indigenous communities, peoples and nations are those which, having a historical continuity with pre-invasion and pre-colonial societies that developed on their territories, consider themselves distinct from other sectors of the societies now prevailing in those territories, or parts of them. They form at present non-dominant sectors of society and are determined to preserve, develop and transmit to future generations their ancestral territories, and their ethnic identity, as the basis of their continued existence as peoples, in accordance with their own cultural patterns, social institutions and legal systems. JR Martinez- Cobo, Report of the Study of the Problem of Discrimination against Indigenous Populations, UN Document No E/CN.4/sub.2/1986/7//Add.4, p. 379.

[78] See Rodolfo Stavenhagen, Supra note 64, at para 53.

[79] See generally Partha Chatterjee, The Nation and its Fragments: Colonial and Postcolonial Histories, (Princeton Unversity Press: New Jersey 1993); Moyibi Amoda, Background to the Conflict: A Summary of Nigeria’s Political History from 1914-1964 in Nigeria: Dilemma of Nationhood: An African Analysis of the Biafran Conflict, (John Okpaku ed, Third Press: New York 1972).

[80] World Bank Group and Extractive Industries, Striking a Better Balance, The Final Report of the Extractive Industries Review, 60 (December 2003).

[81] Id. at 45-51.

[82] Id.

[83] Id.

[84] Id.

[85] See Report of the Organisation for Economic Co-operation and Development on Foreign Direct Investment for Development, Maximising Benefits, Minimising Costs OECD (2002).

[86] Alan H. Gelb and Associates, Oil Windfalls: Blessing or Curse?(Oxford University Press Oxford 1988); Jeffrey D. Sachs and A.M. Warner, The Curse of Natural Resources, 45 European Economic Review.827-838 (2001); Thorvaldur Gylfason, Natural Resources, Education, and Economic Development, 45 European Economic Review. 847-859 (2001); Eduardo Leite and J. Weidman, Does Mother Nature Corrupt? Natural Resources, Corruption and Economic Growth’ Working paper WP99/85 International Monetary Fund Washington DC.

[87] This view that social concerns cannot be detached from business has been extensively discussed by Mark Granovetter. See generally, Mark. Granovetter, Economic Action and Social Structure: The Problem of Embeddedness, 91 American JS. 485-510 (1985). See also John Ruggie, Supra note 34. 

[88] For full observations of the opposing states, see  United Nations General Assembly GA/10612 Sixty- First General Assembly Plenary 107th &108th meetings (13 September, 2007),  http://www.un.org/news/Press/docs/2007 .

[89] For a full analysis of a global consensus, see the following, Siegfried Wiessner, Rights and Status of Indigenous Peoples: A Global Comparative and International Legal Analysis, 12 Harvard HRJ. (1999); S. James Anaya & R. Williams, Jr., The Protection of Indigenous Peoples’ Rights over Lands and Natural Resources Under the Inter-American Human Rights System, 14 Harvard HRJ. (2001).

[90] See Government Memorandum on the Petroleum Industry Bill (2009),

http://www.saharareporters.com/sites/default/files/PIB_Ebogah.pdf.  In addition, the memorandum only provided for the need to protect the environment during petroleum development, but we are yet to see how the government will implement the environmental plan to achieve effective environmental protection.

[91] See Okechukwu Ejims, The Role of International Law in Resource Development Through Foreign Investment and the Protection of Indigenous Peoples: A Case Study of Nigeria 268 (December 2009) (Unpublished manuscript, on file with author).

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