INTERNATIONAL ISSUES RELATING TO ENVIRONMENTAL JUSTICE AND COMMUNITY DEVELOPMENT

A Contribution to the Discussion at the World Conference of Mayors Being Held in Eket, Akwa Ibom State, Nigeria on the 16th - 20th July, 2001.

By PROFESSOR AMOS AGBE UTUAMA, LL.M, Ph.D Hon. Attorney-General and Commissioner for Justice, Delta State.

INTRODUCTION: I am extremely honoured by the personal invitation of Mis Excellency, Obong Victor Attah, Governor of Akwa-Ibom State to participate in this all- important conference of World Mayors and to contribute to the discussion of the theme of this session. I use this unique opportunity to join the Govermneni and people of Akwa-Ibom State in welcoming the assemblage of eminent administrators who work in close contact with people the world over. The theme of tills session to which 1 am here to contribute raises several issues of wide and important ramifications in man's relationship with his environment. However, I intend to share it with you from three viewpoints: namely (a) global environmental issues and justice, (b) drawbacks of the international approach and (c) the nagativc impact on the aspirations of minority communities for sustainable development. In doing so, our thesis will be that the international imperatives arc not sufficiently protective of the interests and rights of minority communities to sustainable development and will urge the need for a serious re-thinking in order to meet the justice of such situation.

A. GLOBAL ENVIRONMENTAL ISSUES AND JUSTICE

2. Drawing from the views of various jurists and scholars, especially Professor Dennis Lloyd in his invaluable book. The idea of Law, 1964 ed. "justice" is an external value of rightness to which law should strive to achieve for a society. In legal jurisprudence, such values have ranged from Ben them's theory of 'Utilitarianism of justice' being the pursuit of the greatest happiness for the greatest number to John Pawl's theory of 'inclusion of the least advantaged'. On the other hand, the New Webster's Dictionary of the English Language states that the environment consists of the surroundings especially the material and spiritual influences which affect the growth, development and existence of a living being. In this sense, environment is personalised and localized.

3. Global Issues Recent years have witnessed the increasing awareness of the extensive range of environmental problems which have now formed serious international concern and agenda for the survival of mankind. The areas of threat include atmospheric pollution, global warming, ozone depletion and the dangers of nuclear and other extra-hazardous substances, not to mention threatened wildlife species. In our country and in particular the Niger-Delta region, we are besieged by situations of grave and overwhelming environmental annihilation brought about by continuous and intensive exploitation of natural resources without regard for environmental protection and sustainable development.

4. Imperatives for Global Justice; The world concern and efforts to tackle the issues and avoid global environmental disaster have been expressed in various declarations, initiatives, conventions, conferences and treaties, among which are (a) the Stockholm Declaration of the United Nations Conference on the Human 1 environment 1972, (b) die 1985 Vienna Convention for the protection of the O^one layer, (c) the 1987 Montreal Protocol and the 1992 Convention on Biodiversity, (d) the Rio Declaration on the Environment and Development, 1992, (e) Convention on the Law of the Sea 1982, (f) Convention on Long Range Trans boundary Air Pollution 1979, (g) the Convention on Environmental Impact Assessment in a Transboundary Context 1991 and (h) the Convention on Climatic Change.

5. These efforts crystallised into international principles of justice for regulating the management and exploitation of environmental resources for sustainable development aimed at preventing abuses and stimulating the potentials for sustainable development. Among them are the principles of (a) permanent sovereignty over natural resources, (b) common but differentiated responsibilities, (c) precautionary principles, (d) polluter pays, (e) cooperation in scientific research and exchange of information, (f) common heritage and interest of mankind (g) new global partnership (g) prior informed consent and prior notification and (h) interencrational equity.

6. Relevant Principles Of these environmental imp era fives of justice, the principles of common heritage and interest of mankind as well as in lei-generational equity are ol relevance to our contribution. The principle of intergenerational equity asserts that each generation owes a duty to future ones to avoid impairing their abilities to fulfill their basic needs. This means that the present generation is under a duty to exercise prudence and austerity measures in the management of natural resources in order to ensure that it does not pass on to future generations a worse environment that does not meet their basic human needs and values.

7. Inspired by these shared values, the world community, under the aegis of the United Nations, adopted the United Nations Convention of the Law of the Sea, 1982. The Convention, among other things, delimited the Territorial Sea, Exclusive Economic zone and Continental Shelf of each coastal State. It also declared the sovereign rights of coastal States over these territories for the purpose of exploring and exploiting, conserving and managing natural resources to the exclusion of the adjoining and opposite coastal State. Article 197 of the Convention provided for cooperation on a global regional basis in formulating and elaborating international rules, standards and recommended practices and procedures consistent with this Convention for the protection and preservation of marine environment, taking into account characteristic regional features.

8. As environmentally friendly as these arrangements may seem, they fall short of expectations by the nature of their origin in international law to address the concern of the coastal minority communities of the Niger-Delta in general. The reason is simply that Nigeria as a coastal State is the subject of international law as against the people of its coastal region.

B. DRAWBACKS OF INTERNATIONAL LAWS

9. The attempt: of the Rio Declaration adopted at the UN Conference on Environment and Development in 1992 to put human beings at the center of concern for sustainable development has been unfortunately deficient. Expressing his dissatisfaction, Malcolm N Shaw in his invaluable book "International Law" 4th cd. at page 588 stated: "Beyond this tangential reference, human rights concerns were not, it is fair to say, at the center of the documentation produced hy the 1992 Conference. In fact, it is fair to say that the focus of the Conference wa.s rather upon slates and their sovereign rights than upon the individuals and their rights.

10. In our view, the international imperatives for environmental justice are hinged on the ultimate goal of a world community in which a democratic distribution of values is presumed to be an equitable mechanism. However, we arc tempted to say that that process can only be meaningful in the political sphere with respect to political rights as against natural resources. A democratic process is more likely to deliver the God-given resources of minority communities into the hands of majority communities.

C. COMMUNITY DEVELOPMENT

11. As noted earlier, development is the harnessing of human and material resources for economic growth and development of a given society. Such resources may include marine and land resources. One of the important functions claimed for the seas is that they are a vast reservoir of resources, both living and non-living. It is common knowledge for those of us brought up under the influence of traditional and common law values that coastal dwellers have and do enjoy certain riparian proprietary rights in the sea and rivers adjoining their land. These may include the right of fishing, passage and repassage and recreational use. It has indeed been held that coastal dwellers are entitled to the accretions made to land fronting the sea in the case of Att-Gen. V John Holt & Co. (1915) 2 NLR at 57. In the law of land, the endowments of land in terms of natural resources in or under it belong, at common law, to its owner. As such, a landowner exercises the right of ownership which includes the right to use, enjoy, manage and even abuse of its parcel of land limited only by the right of its adjoining neighbour to the reasonable enjoyment of his land. Thus, an eminent scholar of land law, Kwemena Bentsi-Enchill, once stated that land matters a great deal to man as it is to the tree; the quality of the land that a man has determines largely his social status in life.

12. This proposition applies with equal force to a community, region or country. The greater the quality of land or marine a society lias in terms of natural endowment, the greater its potential for socio-economic growth and advancement as well as the respect it enjoys in the community of nations. The Niger-Delta Region: A Case Study of Injustice.

13. The Niger Delta region as the name implies, is located within the delta of the River Niger characterized by the porous sandy soil, dense mangrove swamps and a network of creeks. The traditional economic activities of the people of the Niger-Delta were centred on fishing, farming, palm oil production and canoe construction industry. About four decades ago, crude oil was discovered by Shell D'arcy which later became Shell BP on a commercial scale over an expansive area covered by its exploration license. Since then, the region has had no respite from oil prospecting and exploration activities of several multinational oil companies 111 both land and water. The region, as the treasure belt of the country, accounts for over 90% of the national wealth. Yet the region has been subjected to despicable criminal neglect resulting in massive environmental degradation, impoverishment of the people and the environment culminating in the collapse of their traditional economy. The result has been the massive unemployment of otherwise able-bodied youths who, due to frustration are often restive and violent. We submit therefore that unless the trend of environmental degradation is reversed, the principle of intergenerational equity will soon be sacrificed at the alter of permanent sovereignty of the Nigerian State over natural resources in the Niger-Delta. Should we fail, our future generations, if any, would be justified to blame the present generation for the unpardonable ruin of the environment patrimony of the region.

14. The environmental misery of the region support the theory that the global environmental imperatives of justice have not been able to secure for the minority coastal communities sustatnable development in spite of its enormous resources being exploited by the multinationals in partnership with the Nigerian nation. We are all living witnesses to the seemingly fruitless effort of the Ogonis to press for Justice in respect of ecological disaster associated with oil exploration before the UN's Commission on Human Rights. Rather, the Nigerian nation has partly found support in international conventions to continue its denial of the people of the Niger-Delta region of their natural resources, including off-shore oil, through the means of legislation such as the Territorial Waters Act, Cap 428, Exclusive Economic Zones Act, Cap 116 of the Laws of the Federation, 1990 and constitutional provisions relating to the Continental Shelf intended to give effect to the 1982 Laws of the Sea Convention.

15. In a democracy, the majority often controls the bureaucracy of the State Characteristically, to borrow Karl Marx's reasoning in another context, the ail of the State becomes the private aim of the bureaucrat. The interests of the majority is thus projected as the national interest to over-reach the right of minority communities. 'That of course sounds well in utilitarianism of Justice' being the pursuit of the greatest happiness for the majority. This is the sad case in the Niger Delta region of Nigeria. I am sure there are many "Niger Delta' regions spread all over the globe which need special protection against the onslaught of the powers that be. The global community should owe such people a duty of care and protection against the greed of the oppressive majority at a level that denies the minority communities the right to use their God-given resources for sustainable development of their community for the benefit of present and future generations.

16. There is the need to expand the environmental imperatives for justice to the protection of minority coastal communities. The UN Human Rights Commission should embrace John Rawls's principle of justice that "...all-social primary goods — liberty and opportunity, income and wealth, and the bases of self-respect — are to be distributed equally unless an unequal distribution of any or all of these goods is to the advantage of the least favoured". We believe this should be a new addition to the existing body of international environmental imperatives of Justice at the lisposal of the international community to assist minority coastal communities or realise their aspirations of sustainable development.

D. CONCLUSION

17. From the discourse, one of the international challenges in die development of a community is the balancing of State interest represented by the majority in a democracy against that of a minority community in the utilisation of its resources for sustainable development. We have seen that the contemporary international environmental imperatives are not sufficiently protective of minority interests. Rather, they assist the coastal States to take advantage of their resources. This situation that is created by the international community can be redressed by the international community recognizing and preserving the existing rights of minority communities to the use of their resources for sustainable development to advance the goal of intergenerational equity. This is one clear way, we believe, by which stability and peace will be ensured within nation States the world over in the allocation of environmental resources for sustainable development.

PROF.MOS AGBE UTUAMA HON. ATTORNEY-GENERAL AND COMMISSIONER FOR JUSTICE DELTA STATE.

ACKNOWLEDGEMENTS

I must acknowledge the endeavours of my daughter Fejiro Utuama and son, Ovie Utuama who gathered valuable information and assisted in the articulation of this paper within such acute timeframe and my untiring Special Assistant, "Ochuko Pedro, who helped in no small way to see through its completion on time.