Right to Clean Air?; The Human Rights Approach To Air Pollution In Rivers State,Nigeria. by Andrew Banigo.

Mr Niger D is an acronym you may be familiar with, if you went through the Nigerian educational system. This mnemonic represents the characteristics of living things and for each alphabet, outlines them as;

M: Movement, R: Respiration, N: Nutrition, I: Irritability, G: Growth, E: Excretion , R: Reproduction, D: Death.

Among all these, the first R, representing Respiration is the most important, for it ensures the continuation of all other life functions. The body gets the oxygen it needs to survive through respiration; hence the body unconsciously & continuously carries out this process. Therefore any alteration to this process will most likely result in death.

The prerequisite to respiration is clean air, and when this is not available due to air pollution, the lives of living organisms come to be at risk.

Therefore an endangerment to clean air and respiration is an endangerment to life.

This is the case in the city of Port Harcourt, Nigeria which was known as the Garden City but is now slowly withering away due to chronic air pollution.

Port-Harcourt is situated in the Niger Delta region of Nigeria, and is the Capital of Rivers state, which hosts a number of oil producing facilities that are vital to Nigeria’s economy. Oil exploration constitutes 70% of the nation’s economy and 90% of its foreign exchange.

As a result of poor government regulation, harmful activities such as gas flaring and illegal oil exploration have greatly contributed to the city’s air pollution.

This pollution has recently reached its peak, with visible clouds of soot hanging over the city, coating its people and its surfaces. Pillars of black smoke emit from gas flares and smouldering illegal refineries dotting the city’s skyline. This contributes to an ever constant blanket of gray clouds that blot out the sun.

The prevalence of this soot has contributed to an increase in health conditions such as respiratory illnesses and skin problems from Acid rain.

With the current rate of air pollution the future of the city’s residents look bleak, due to fears over the long term health effects of the soot. The soot is made up of superfine carbon and dust particles, which have been found to be carcinogenic. This sparks fears of a future increase in cancer rates and breathing defects among the populace.

This widespread pollution endangers the life and rights of the residents of Port-Harcourt, therefore actions must be taken to halt this situation.

Judging from the fact that the soot negatively affects the health of the residents of Port-Harcourt and deprives them of clean air, sometimes with lethal consequences, it can be argued that this phenomenon infringes on the rights of the residents of the city.

This opens up a debate on the Human rights implications occasioned by the presence of the soot and its contribution to environmental degradation.

Referring to Global Human Rights instruments, it can be argued that the presence of this soot negatively affects the enjoyment of Article 11 and Article 12 of the International Covenant on Economic and Social Rights (ICESCR) which was adopted by the UN General Assembly on December 16 1966 and entered into force on January 3, 1976, of which Nigeria is a signatory.[1]

Article 11 of this document recognizes “the right of everyone to an adequate standard of living for himself and his family, including adequate food and water, clothing, and housing, and to the continuous improvement of living conditions.

This realization of this right is tied to the availability of a healthy environment, devoid of land, water and air pollution. The right to adequate food, in this article may be affected by air pollution which may affect food production. The right to adequate housing as also contained in this article may be affected living areas being made uninhabitable by air pollution.

Regarding Article 11 of this document, it can be argued that the soot and the pollution in Port-Harcourt affects this right by negatively impacting the standard of living of the residents of Port-Harcourt and rendering the city almost uninhabitable, due to chronic air pollution.

Article 12 of the ICESR recognizes the right to the “enjoyment of the highest attainable standard of physical and mental health”. The steps taken by parties towards the realization of this right, shall include amongst others “the improvement of all aspects of environmental and industrial hygiene” (Article 12(2)(b)). This has been interpreted to mean that the government has an obligation to take steps to protect its population from exposure to harmful chemicals and other harmful environmental contaminants.

Relating this to the air pollution currently plaguing the city of Port-Harcourt, it can be argued that the government has a Human right obligation to protect the health of its citizens, by taking steps to prevent their exposure to harmful environmental contaminants such as the soot.

Referring to the Right to Life, which is a non-derogable right contained in Article 6 of The International Convention on Civil and Political Rights (ICCPR), of which Nigeria is also a signatory, this article has been interpreted to include threats to life brought about by environmental hazards.

The Special Rapporteur on Human Rights and Environment stressed that the right to life imposes strict duties on a State Party to prevent and safeguard against the occurrence of environmental hazards that threaten the lives of human beings, meaning that State responsibility arises regardless of whether an act or omission is deliberate, reckless, or merely negligent.[2]

In reference to the soot, it can be inferred that it poses a threat to the life of the residents of Port-Harcourt, due to its toxic nature. Hence the government has a strict duty to protect its residents from the threat to life brought about by the presence of this environmental hazard.

In reference to regional Human rights instruments, the African Convention on People and Human Rights (ACPHR)[3] which is the main Human rights instrument of the continent of Africa, contains a provision in its Article 24, which states that “All people must have the right to a general satisfactory environment favourable to their development”. This provision is interpreted to mean that the government has the duty to ensure healthy environmental conditions for the wellbeing of its citizens.

This provision is buttressed by Article 1 of this same document (ACPHR), which states that “The member states to the Charter shall recognise the rights, duties and freedoms enshrined in the Charter and shall undertake to adopt legislative or other measures to give effect to them ‘’. This provision clearly outlines the responsibility of the state to implement all necessary measures to ensure that the rights of its citizens are protected.

In relation to the situation in Rivers state, the government at all levels have the obligation to provide a healthy environment for its citizens (Article 24), and the obligation to put into place legislative and other measures to this effect. This therefore is a call from the rights perspective to the Government to hastily implement measures to address air pollution in Port Harcourt city and its environs.

The argument of rights in relation to environmental degradation has been given recognition in various cases. Most relevant is the case between the Social and Economic Rights project (SERAP) and the Federal Republic of Nigeria in relation to the environmental degradation brought upon the Niger delta due to oil exploration.[4]

SERAP brought Article 1 & 24 of the ACPHR, Article 11 and 12 of the ICESR, Article 6 of the ICCPR amongst many others in its claims before the ECOWAS Community Court of Justice. These claims were recognised as valid in the final ruling of the court, particularly in regard to Article 1 and 24 of the ACPHR. This ruling gives added impetus to the validity of rights claims in relation to cases of environmental degradation.

Human rights obligations are state centric in nature, in that the responsibility falls upon the state to respect, protect and fulfil these rights. The effectiveness of this protection is determined by the political will of the state.

Due to the economic importance of the activities of major corporations, most states are reluctant to effectively sanction the activities of these entities, placing more importance on the economic cost of sanctioning their activities rather than the Human cost being incurred by the continuation of these activities.

Although multi-national corporations do not have any legally binding obligations in international human rights law, due to its state-centric nature, various guidelines have been formulated to guide their economic activities to ensure that they do not infringe on the human rights of their host citizens.

One of such is the United Nations Guiding Principles on Business and Human Rights (UNGP) which is built upon the United Nation’s ‘Protect, Respect and Remedy’ framework on the issue of Human rights and transnational corporations and other business enterprises.[5]

The three pillars of the UNGP outline;

· The state’s duty to protect Human rights

· The corporate responsibility to respect human rights

· Access to remedy for victims of business related abuses.

These guidelines indicate that, although it is primarily the state’s responsibility to protect the human rights of its citizens, corporations also have a moral responsibility to respect the Human rights of the citizen, by carrying out their economic activities in a way that these rights are not infringed upon.

As the residents of Port Harcourt continue to suffocate under the clouds of the ever increasing soot, and as we become more aware of the legal and moral responsibilities of the Government and corporations concerning human rights;

The question to be asked is, Will the government summon the political will to effectively sanction the corporations, whose activities are responsible for the production of the toxic soot?, or would it just watch while its citizens slowly succumb to the devastating effects of air pollution?

Andrew Banigo is an authority on International Law and Geopolitics. He hold a BS.c in Political and Administrative studies and an LLM in International Commercial Law and Human rights. He’s a Writer, Researcher, Activist and Global Shaper.

https://www.linkedin.com/in/andrew-banigo-7361b3b7

[1] ICESR https://treaties.un.org/Pages/ViewDetails.aspx?src=IND&mtdsg_no=IV-3&chapter=4&clang=_en

[2] Submission of the Maldives to the Office of High Commissioner for Human Rights under Resolution 7/23, (September2008). available at http://www.ciel.org/Publications/Maldives/Maldives_Submission_29Sep08.pdf.

[3] ACPHR http://www.achpr.org/instruments/achpr/

[4] SERAP vs FRCN Judgement No. ECW/CCJ/JUD/18/12

[5] Accessed here www.ohchr.org/Documents/Publications/GuidingPrinciplesBusinessHR_EN.pdf