The Nigeria Ogoni Investigation Commission: the role of the UNSC

Lucrece A.

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The Nigeria Ogoni Investigation Commission: the role of the UNSC

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Themes

Nigeria Ogoni Investigation Commission, ICCPR International Covenant on Civil and Political Rights, ICESCR International Covenant on Economic, Social and Cultural Rights, pollution, Shell Petroleum, environmental law, BIT Bilateral Investment Treaty, ACHPR African Charter on Human and People's Right, ICJ International Court of Justice, UNSC United Nation Security Council, embargo, petrol industry, human rights

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Abstract

The Nigerian Government has been responsible for the violations of Human Rights under the International Covenant on Civil and Political Rights (1966) and under the International Covenant on Economic, Social and Cultural Rights (1966).
The State of Nigeria ratified both covenants on the 29th of July 1993 and did not formulate any reservation. The State of Nigeria is responsible for serious violation of Human Rights under article 2, article 6, article 9, article 14 and article 19 of the International Covenant on Civil and Political Rights (ICCPR).

History
Legality of the nationalization
Compensation
The UNSC embargo was based on unevenly applied standards of threat to international peace
The UNSC is not above international law, therefore, the formulation of sanctions must comply with Human Rights
The UNSC is responsible for the unintended adverse consequences of the economic sanctions

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Extract

[...] One of the arguments of the Nigerian government could be that the BIT was an infringement to the spirit of the UN Charter and to articles 21.1 and 21.5 of the African Charter on Human and People's Right8. This article reaffirms the inalienable right to freely dispose of their natural wealth and resources in accordance with their national interests, and on respect for the economic independence of States. To advance this claim Nigeria would have to prove that the BIT only served the private interest of the state. [...]

[...] The resolution states that in cases of nationalization an "appropriate compensation" shall be repaid to the owner of the propriety. The resolution also mentions that the exploitation of the natural resources must be exercised in the public interest, overriding private interests.20 The prompt does not precise if the Nigerian government gave compensations to the people harmed by the toxic impact of the oil factories or if the population benefited from Shell Petroleum profits in any way. If the people had to bear the impact without receiving any form of compensation the new government could argue that the BIT was void because it was drafted following the private interest of the political elite. [...]

[...] Indeed, if both parties act according to the terms of the treaty it does not impair on Nigeria's sovereignty over its natural wealth and resources. According to the BIT the earnings of the oil production factories were shared between Shell Petroleum and the Nigerian government in terms freely agreed by both parties. Shell Petroleum could argue that the nationalization was unlawful because any unilateral amendment or termination of the 1992 BIT must be preceded by a notice to the other party a year earlier. Therefore, the Nigerian government nationalization without notice constitutes a breach to the 1992 BIT. [...]

[...] Finally, the Ogoni Nine activist were hanged, this reprehensible execution constitutes a violation of the supreme right to life5. The two covenants on Human Rights do not guarantee the specific right to a safe and decent living environment unrelated to its impact on individuals. However, I think that the Committee would charge the State of Nigeria for the environmental impact of the oil industry on its territory. Indeed, the State did not attempt to monitor the environmental consequences of the project and did not provide compensations to citizens whose health could be put at risk because of the adverse environmental consequences. [...]

[...] However, the arbitrator noted that states have to observe international standards of conduct such as the necessity of paying due compensation. Therefore, the act of nationalization in itself is not unlawful. III. Compensation Compensation should follow the customary international investment law and be "prompt, adequate and effective". I think the amount asked by Shell Petroleum will depend on the way the company envisions its business relations with Nigeria in the future. Indeed, the company could choose a trade-off between taking limited compensation for the present and maintaining good economic relations for the future. [...]

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