ENVIRONMENTAL RIGHTS AND SUSTAINABLE DEVELOPMENT IN NIGERIA – AN APPRAISAL

INTRODUCTION

Humanity is naturally endowed with environment and the rights to bask same. The environment is the demesne where all desires and activities of man are accomplished. The quest of man to be generative has necessitated the exploitation activities by man. The need for sustainable development has spurred efforts in all spheres which include manufacturing, processing, industrialization, housing, construction, agriculture, rural and urban growth and development which have all subjected the environment to changes that are being witnessed today.
            No doubt, the exploitation of natural resources and developmental projects has inflicted positive and negative impacts on our environment, the resultant effect of which is denial of rights to good environment. The environment is the focal point in the drive for sustainable development in various sectors and institutions, stressing that there would be no development without the environment. The protection of the environmental rights is sequel to the awareness of man to control it. The reasoning of using the law to regulate and ensure a safer environment becomes fundamental in our ways of life. There have been cases of environmental degradation, deforestation, environmental pollution and many other environmental hazards that are man-made as a result of human attempts to promote and attain sustainable development. Environmental rights vis-a-vis sustainable developments can be realized depending on the approaches adopted.

            This paper examines the meaning of environment, and argues that environment has much influence on human life and well-being of human communities. It also traces environmental law and governance history by looking at the relevant major Treaties and Declarations as well as laws, internationally and domestically. The paper also argues that environmental rights is part of human rights, and examines its enforceability in national courts. Attempt is also be made to discuss the concept of sustainable development from different views. Relevant international and regional laws are also considered. The paper also argues that sustainable development is directly related to environmental rights, as many human rights challenges are posed by human efforts towards sustainable development, hence, the need to employ legal regulation to ensure a safer environment. The paper concludes among other things with the argument that environmental rights transcend social-economic right, rather it should be accorded fundamental right status, the violation of which should be meted with capital penalty.

THE ENVIRONMENT

            For proper appreciation of environmental rights, it is important to start our discourse voyage by examining and comprehending the meaning of the term “environment”. Environment is the totality of the places and surroundings in which we live, work, and interact with other people in our cultural, religious, political and socio-economic activities for self fulfilment and advancement of our communities, societies or nations. It is within the environment that both natural and man-made things are found.[1]

            In a broader and more explicit sense, Environment has been defined by National Environmental Standards and Regulations Enforcement Agency (NESREA) Act[2] as including “water, air, land and all plants and human being or animals living therein and the inter-relationship that exist among these or any of them”. Also, arising from the provisions of Constitution of the Federal Republic of Nigeria[3] the term environment means the following:

(a) The water, air and land (b) Forest and wild life (c) All layers of the atmosphere (d) All organic and in-organic matter and living organisms and (e) The interacting natural systems that include components referred to in paragraph (a) to (d).

The term "environment" is used to refer to everything that is around us: land, water, and atmosphere, places of special importance, plant and animal life. The environment therefore has a tremendous influence on human life and the well-being of social communities.[4] The environment affects us all. We all need a healthy environment to live healthy lives: clean air and water, safe living areas, sufficient and healthy foods. When the environment becomes degraded, it affects us all in the long run, but poor people are the first to suffer.[5] Therefore, the right to good environment is almost inalienable.

            In practice this means that our daily living and working environments must be improved, all people must have equal access to land and natural resources, we must use social, cultural and natural resources in a sustainable manner, and we must promote public participation in decisions about how the environment is used.[6]

ENVIRONMENTAL LAW AND GOVERNANCE IN HISTORY

            The United Nations Conference on the Human Environment, held in Stockholm, Sweden, during June 5-16, 1972, was the first international gathering to look at the environment as affected by human activities. The conference produced a set of fundamental principles in the Stockholm Declaration[7], established World Environment Day, and led to the eventual creation of the United Nations Environment Programme.

            Twenty years later, the United Nations Conference on Environment and Development (UNCED), also known as the “Earth Summit,” was held in Rio de Janeiro, Brazil during June 3-14, 1992. Major achievements include the Rio Declaration on Environment and Development, Agenda 21, the opening for signature of the United Nations Framework Convention on Climate Change, and the Non-Legally Binding Authoritative Statement of Principles for a Global Consensus on the Management, Conservation and Sustainable Development of All Types of Forests.[8]  Also, as further input to the World Summit on Sustainable Development, an “International Eminent Persons Meeting on Inter-Linkages: Bridging Problems and Solutions to Work towards Sustainable Development,” was held during September 3-4, 2001 at the United Nations University Centre in Tokyo, Japan.

            In order to take stock of progress made globally since the Rio Earth Summit of 1992 and adopt concrete steps to strengthen and build upon sustainable development efforts around the world, the World Summit on Sustainable Development (WSSD) was held August 26 to September 4, 2002, in Johannesburg, South Africa.[9]

KEY REGULATORY FRAMEWORKS FOR ENVIRONMENTAL PROTECTION IN NIGERIA

            The development of environmental regulations in Nigeria was hurried in the late 1980s by the Koko incident that occurred in the country. Environmental legislation in Nigeria has been described as a product of national emergency.[10] The regulatory frameworks discussed below are the most relevant for environmental protection in Nigeria in the recent decades.



The Nigerian Constitution

            The Constitution of Nigeria does not grant an express right to a healthy, clean environment. Section 20 of the Constitution of the Federal Republic of Nigeria 1999 provides that ‘the State shall protect and improve the environment and safeguard the water, air and land, forest and wild life of Nigeria’. The ‘right’ provided under this section is not justiciable - it cannot be relied upon by an aggrieved person in a court of law since by virtue of Section 6(6)(c) of the Constitution it shall not except as otherwise provided by the Constitution, extend to any issue or question as to whether any act of omission by any authority or person or as to whether any law or any judicial decision is in conformity with the Fundamental Objectives and Directive Principles of State Policy set out in Chapter II of this Constitution.[11]



National Environmental Standards and Regulations Enforcement Agency Act, 2007

            Historically, in 1987, Nigeria took a giant leap by becoming an environmentally conscious nation following the dumping of toxic waste in Koko village, in Delta State. The country was before this incident, ill-equipped to manage such environmental crisis, as there were no institutional capacity and legislations to address such matters.[12]

            Consequent upon the Koko toxic waste episode was the promulgation of the Harmful Waste Decree 42 of 1988, which facilitated the establishment of the Federal Environmental Protection Agency (FEPA) through Decree 58 of 1988 and 59 (amended) of 1992.[13] FEPA was charged with the overall responsibility for environmental management and protection. In the wisdom of Government, FEPA and other relevant Departments in other Ministries were merged to form the Federal Ministry of Environment in 1999, but without an appropriate enabling law on enforcement issues.[14]

            This situation, however, created a vacuum in the effective enforcement of environmental laws, standards and regulations in the country and National Environmental Standards and Regulations Enforcement Agency (NESREA) was born. In addressing the need for an enforcement Agency, the Federal Government in line with section 20 of the 1999 Constitution of the Federal Republic of Nigeria, established the NESREA as a parastatal of the Federal Ministry of Environment, Housing and Urban Development.[15]

            The NESREA,[16] an Agency of the Ministry of Environment Housing and Urban Development is charged with the responsibility of enforcing environmental Laws, regulations and  standard in deterring people, industries and organization from polluting and degrading the environment. NESREA also has responsibility for the protection and development of the environment, biodiversity conservation and sustainable development of Nigeria’s natural resources in general and environmental technology including coordination, and liaison with, relevant stakeholders within and outside Nigeria on matters of enforcement of environmental standards, regulations, rules, laws, policies and guidelines.[17]



ENVIRONMENTAL RIGHTS

            The concept of a “right” is very wide-ranging, and has been defined in many ways. Contemporarily, rights that are recognized as legitimate are usually divided into two categories: (1) civil and political rights, and (2) economic, social, and cultural rights. Civil and political rights ensure moral and political order, and include the right to life, participation and equality. Economic, social, and cultural rights maintain principles for an individual’s well being.[18] Environmental rights fall within the second category above. If we read between the lines globally, one can see that environmental rights are majorly implied, as they are not explicitly present in most of the international instruments.[19]



            Although environmental rights are not overtly expressed in the prominent international treaties and instruments, there are references to the existence of such a right in various other documents supported by international organizations. For examples:

The International Covenant on Economic, Social and Cultural Rights (1966) includes the rights to health,[20] and the right of all peoples to manage their own natural resources.

The Economic Commission for Europe has also considered including the human right to a healthy environment in its convention on access to environmental information and public participation in decision-making (The Aarhus Convention).[21]

The United Nations Environment Programme (UNEP) has stated that its activities have included “providing advisory services to sensitize Governments with regard to the need to incorporate in the Constitution…provisions on the individual’s right to a clean and healthy environment.” [22]

The United Nations Development Programme (UNDP) has put forth the idea that a clean environment is a fundamental human right, and that its destruction should be considered a threat to national security. [23]

            Although these references only make it possible for someone to assert that their environmental rights have been infringed upon, it does not make it any easier to substantiate their case. An example of this case is the Walkerton water crisis, when 7 people died and 2300 people fell ill from bacteria called E.coli poisoning a town in Ontario. The event resulted from bacteria found in cow manure, which washed into the town’s main source of water: a poorly maintained well. While this case intuitively seems to be a violation of rights to a safe and clean environment, the continuing battle of blame, which occurred between local and provincial officials, demonstrates the need for legislation and institutional changes that legitimates such rights, and the ability to claim compensation.[24]

            Environmental rights mean access to the unspoiled natural resources that enable survival, including land, shelter, food, water and air. They also include more purely ecological rights, including the right for a certain beetle to survive or the right for an individual to enjoy an unspoiled landscape.[25] Environmental rights are human rights, as people's livelihoods, their health, and sometimes their very existence depend upon the quality of and their access to the surrounding environment as well as the recognition of their rights to information, participation, security and redress.[26]



Although both human rights protection and environmental protection are relatively well-developed areas of public policy, recognition of the linkage between the two has been slow to develop. The activists, scholars, and policy practitioners’, having increasingly encountered intersection of these two areas, have intensified their calls for the protection of environmental rights.[27]

            While commitments to ideals of equity and responsibility may be declared in the text and entrenched in the design of the climate convention,[28] their formal recognition in law and policy can more effectively be accomplished by substantiating them as environmental rights, which provide the necessary legal and political support for assisting right holders in having their claims recognized. Since a right connotes a valid claim to either provision (in the case of positive rights) or non-interference (with negative rights), the legal protection of rights offers a more robust form of protection for those interests that they are designed to advance  as well as having a powerful effect on the formation of social norms.[29] As Tim Hayward[30] notes of observing aims of environmental protection through legal or constitutional rights, “it entrenches a recognition of the importance of environmental protection; it offer the possibility of unifying principles for legislation and regulation; it secures these principles against the vicissitudes of routine politics, while at the same time enhancing possibilities of democratic participation in environmental decision-making processes.”[31]

            Given the trumping power of constitutional rights, Hayward makes the case for them by comparing environmental rights to the set of recognized universal human rights, noting the intuition that :

“an adequate environment is as basic a condition of human flourishing as any of those that are already protected as human rights.”[32]

Hayward argues that the right to an adequate environment meets the standard test for a genuine human right, since it protects human interests that are “of paramount moral importance” (given that “environmental harms can threaten vital human interests”), and that such a right would also be genuinely universal, as “the interests it is intended to protect are common to all humans.”[33]

            Although many formulations of environmental rights exist in law and in the academic literature of human rights, the most general and encompassing formulation of the range of interests that they might protect posits a right to a physical environment which provides the requisite material basis for human flourishing (and not merely human survival), an exemplary version of which can be found in the opening principle of the Stockholm Declaration[34]:

Man has the fundamental right to freedom, equality, and adequate conditions of

life, in an environment of a quality that permits a life of dignity and well-being,

and he bears a solemn responsibility to protect and improve the environment for

present and future generations.[35]

            Essential to the expression of the right to an adequate environment are several features that are instructive to the case for a right to climatic stability. First, the environmental conditions that the right aims to secure are set alongside basic human ideals of freedom and equality in order to emphasize that all three (and not merely the first two) ought to have the status of fundamental rights (which have priority over other less important rights) and that the three are interrelated (i.e. in the absence of adequate environmental conditions, the ideals of freedom and equality cannot fully be realized, and that greater freedom and equality may also be necessary conditions for protecting the environment). Second, all three of these rights are associated with human dignity and well-being (or welfare), which aims to undercut the common assertion that environmental protection trades off against human welfare. Finally, the resolution associates this right to a “solemn responsibility” (correlative duties of environmental protection) to which persons are obligated from cosmopolitan and intergenerational justice.[36]



            The right to an adequate environment is intended to encompass a broad range of duties of environmental protection in which persons are the primary beneficiaries of obligatory actions (its aims of protecting human dignity and welfare are explicitly anthropocentric, so it cannot connote duties in which non-human animals or ecosystems are the exclusive beneficiaries), and the right to climatic stability appears to be an obvious corollary of such a right. While climate change is only one of many ongoing threats to the maintenance of an adequate environment, it must be regarded as among the most serious threats. Therefore, the duty to maintain climatic stability (or to refrain from excessive Greenhouse gas (GHG) emissions) is a necessary but insufficient condition for meeting the general obligation to maintain an adequate environment, making the right to climatic stability a subsidiary right to the general right sketched above.[37]

            Before we can fully understand the implications of recognizing the right to an adequate environment, though, we must first consider those two rights against which its GHG-reducing imperatives must be balanced, as both the right to survival emissions (or, more generally, to subsistence) as well as the right to develop both weigh in the opposite direction, and are jeopardized by global emissions allocation schemes that excessively limit national emissions in order to guard against climatic instability.[38]

            In 1994 the United Nations Sub-commission on the Prevention of Discrimination and Protection of Minorities issued an extensive report on human rights and the environment, prepared by Special Rapporteur Fatma Zohra Ksentini[39] and accompanied by a Draft Declaration of Principles, claiming the interdependence and indivisibility of human rights, an ecologically sound environment, sustainable development, and peace. Since then, the U.N. Human Rights Commission has received a series of reports from Ms. Ksentini on the narrower topic of the impact of toxic and dangerous products and wastes on human rights. In addition, regional and international tribunals[40] have allowed victims to bring cases based on rights violations caused by environmental harm, and some national tribunals have accepted suits claiming violations of a right to a healthy environment.[41]

            Despite these developments, no binding international agreement has had environmental rights as its primary focus. In addition, the issue continues to suffer from inattention due to the fact that it fails to fit neatly within the agenda of either the human rights movement or the environmental movement. Few international human rights organizations have programs devoted to this set of rights; likewise, movements focused on protecting the environment do not generally have as their aim the more human-centered goals of environmental rights, which commonly include social justice issues such as the disproportionate suffering of poor, indigenous, and minority communities from toxic industrial activity. Even the environmental justice movement in the United States predominantly limits its scope to situations occurring within the nation’s borders.[42]



ENVIRONMENTAL RIGHTS IN NATIONAL COURTS

“A nation’s constitution is more than an organic Act establishing governmental authorities and competences; the constitution also guarantees citizens basic fundamental human rights such as the right to life, the right to justice and increasingly the right to a clean and healthy environment”.[43]  National courts around the world in precedent setting cases have affirmed this belief. The judiciary in India,[44] the United States,[45] Pakistan,[46] and most recently Nigeria have interpreted the right to life to include a right to a healthy environment.[47] Many of the cases in the national courts have arisen from exploration and management of natural resources in local communities; oil drilling and exploration, mining, forestry operations etc.[48]

            In Nigeria, “in the oil sector where environmental degradation is most prevalent, the all pervading influence of the oil companies and the paternalistic attitude of the judges towards them in matters relating to environmental hazards created by the companies have made the enforcement of environmental laws ineffective…. What the judges fail to realise is that economic development can be compatible with environmental conservation”.[49] Contrary to the India situation where an act damaging the environment was ordered to cease by the court despite the significant loss of investment that would occur, the situation in Nigeria had been different until quite recently. The Nigerian judiciary has been reluctant to give orders compelling companies whose operations are damaging the environment to cease the actions complained of.[50] The consideration of the potential loss of revenue and investment outweighs considerations for the protection of the environment.[51] This is due largely to the fact that the Nigerian economy is dependent on the revenue from the sale of crude oil.[52]

            Since 1990 till date, there have been several oil related cases filed in the courts in Nigeria alleging pollution from oil exploration, loss of income, loss of property, contamination of drinking water leading to water borne diseases, pollution of land etc.

In the cases of Shell v. Tiebo VII,[53] Shell v. Isaiah, [54]Seismograph services v. Mark,[55] Ogiale v. Shell,[56] Shell v. Ambah.[57] The general characteristics that runs through all the above mentioned cases are; they are all claims for compensation for the operation of oil companies in their local communities, they are usually oil spillage claims for loss of income from fishing and farming, pollution of drinking water, damage to farmlands and crops, and damage to health as a result of water-borne diseases. The courts in their various judgements refrained from making orders for the remediation of damages done to the physical environment, the land, and water resources.[58]

            However, in the case of Shell v. Farah,[59] apart from asking for compensation, the plaintiffs specifically asked the court to make an order for the rehabilitation of their damaged land. The court was creative in deciding this case because quite unlike other oil spillage cases in Nigeria where conflicting expert evidence is given for both parties, the court resolved the conflict by appointing two independent experts to assist the court in coming to a decision whether the affected land had been rehabilitated to its pre-impact conditions. Shell v. Farah prepared the way for change, it is the first case where the plaintiff prayed the court for compensation and remediation of damaged land and both claims were awarded accordingly.[60]It is fair to say that there has been a definite shift in the attitude of the Nigerian judiciary. However, much is still desired.



THE CONCEPT OF DEVELOPMENT

            Before embarking on the discourse of sustainable development, it is paramount to substantiate the concept of development. The preamble to the Declaration on the Right to Development (DRD)[61] defines development as:

A comprehensive economic, social and political process, which aims at the constant improvement of the well-being of the entire population and of all individuals on the basis of their active, free and  meaningful participation in development and in the fair distribution of the benefits resulting there from.

            This definition is comprehensive with regard to environmental rights since it takes an inclusive and participatory approach that will improve and benefit human well-being through development projects. However the dilemma has been in the practical implementation.

            Development has evolved from a concept to a right[62] as recognised under the DRD. The question as to who is the right-holder and who is the duty-bearer to this right has raised controversy. According to the DRD ‘all peoples and individual’[63] are entitled to the right to development. The UNDP which came up with the concept of the Human Development Index insists that the right to development should not only be people focused but also gender focused.

            Great ideas are usually simple ideas. While the specific analysis of any important topic will necessarily involve complexity and subtlety, the fundamental concepts which underlie powerful paradigms of thought are usually relatively straightforward and easy to grasp. In the area of social science, ideas which affect millions of people and guide the policies of nations must be accessible to all, not just to elite. Only thus can they permeate institutions from the local to the global level, and become a part of the human landscape, part of the fabric within which we define our lives. Such is the concept of development.[64]

            Prior to the second half of the twentieth century, the idea of development as we know it today barely existed. The structures of imperial and colonial power which dominated the world in the nineteenth and early twentieth centuries made little provision for economic and social advance in what we now call the developing world. Colonial regions functioned primarily to supply imperial powers with raw materials and cheap labour – including slave labour as late as the mid-nineteenth century. Within the richer countries of Europe, North America, and Japan, economic growth was of course central to the generally accepted goals of “progress” and “modernization”, but there was relatively little concern for issues of equity and social justice. The desperate poverty and weak or non-existent social safety nets in Europe and the United States during the Great Depression showed how even in these countries, policy was not driven by the needs of the majority of people. By the end of the Second World War, perceptions and policy had changed drastically.[65]

            Economic and social improvement for the majority had become a major preoccupation of governments, and with the crumbling of colonial power relations this goal was extended to the poorer nations of the world. Economic development, with its social and institutional correlates, came to occupy an essential place in theory and policy, as well as in the Cold War competition between capitalism and communism. As the historian of economic thought Roger Backhouse puts it:

“Development economics in its modern form did not exist before the 1940's. The concern of development economics, as the term is now understood, is with countries or regions which are seen to be under or less developed relative to others, and which, it is commonly believed, should, if they are not to become ever poorer relative to the developed countries, be developed in some way.”[66]

            Within formal neoclassical economic theory, an effort has been made to achieve a positive rather than a normative perspective – that is, to describe what is rather than positing what should be. Development economics, in contrast, is explicitly normative, as Backhouse’s description makes clear. As such, it cannot avoid concern with social and political issues, and must focus on goals, ideals, and ends, as well as economic means.

            As development policy has evolved, different approaches have been emphasized at different times. The original emphasis was on promoting more productive agriculture and industrialization. In the late 1970's a focus on basic needs was advocated by Paul Streeten, Mahbub Ul Haq, and others.[67]  Education, nutrition, health, sanitation, and employment for the poor were the central components of this approach – reflecting an acknowledgment that the benefits of development did not necessarily “trickle down” to those who needed them most.

            This perspective inspired the creation of the United Nations Development Programme’s

Human Development Index, which uses health and education, measures together with Gross Domestic Product (GDP) to calculate an overall index of development success. In the 1980's the focus shifted to “structural adjustment”, including liberalization of trade, eliminating government deficits and overvalued exchange rates, and dismantling inefficient parastatal organizations. Structural adjustment was seen as correcting the errors of earlier, government-centred development policies which had led to bloated bureaucracies, unbalanced budgets, and excessive debt. But critiques of structural adjustment policies have found them at odds with the basic needs priorities. Market-oriented reforms have often led to greater inequality and hardship for the poor even as economic efficiency improved. A tension thus remains between the basic needs and market-oriented perspectives on development.[68]

            Globally, most countries have made significant advances both in GDP and in Human

Development Index measures. But overall, the record of development on a world scale is

open to two major criticisms:

• The benefits of development have been distributed unevenly, with income inequalities remaining persistent and sometimes increasing over time. The global numbers of extremely poor and malnourished people have remained high, and in some areas have increased, even as a global middle class has achieved relative affluence.

• There have been major negative impacts of development on the environment and on existing social structures. Many traditional societies have been devastated by development of forests, water systems, and intensive fisheries. Urban areas in developing countries commonly suffer from extreme pollution and inadequate transportation, water, and sewer infrastructure. Environmental damage, if unchecked, may undermine the achievements of development and even lead to collapse of essential ecosystems.[69] These problems are not minor blemishes on an overall record of success. Rather, they appear to be endemic to development as it has taken place over the past half-century, and too threaten to turn success into failure.



            Whether we seek a reform or a radical rethinking of the concept of development, it is evident that changes are required in both goals and methods. The straightforward view of development as an upward climb, common to all nations but with different countries at different stages, seems inadequate for the twenty-first century. The absolute gaps between rich and poor nations, and between rich and poor groups within individual countries, are widening, not narrowing. And even if we can imagine all nations reaching stable populations and satisfactory levels of GDP by, say, 2050, can we envision the planetary ecosystem surviving the greatly increased demands on its resources and environmental absorption capacity?

            The growing awareness of these challenges to traditional development thinking has led to the increasingly wide acceptance of a new concept viz: sustainable development. Development which protects the environment, development which advances social justice -- phrases such as these have surrounded the introduction of what has been claimed to be a new paradigm. The new formulation has been eagerly adopted both by critics of standard development practice and by leaders of existing development institutions. But what does sustainable development really mean?



SUSTAINABLE DEVELOPMENT

            The reasoning in sustainable development is to ensure that our environment is safe for human habitation and to check the adverse effect of emerging environmental problems.[70] The extent at which the law will assist in environmental matters will be of great benefit. Sustainable development as accounted by Segynola[71] in its concept highlighted namely, the environmental-based, the poverty-based and the political/governance-based nature of sustainable development. In addition, economic development has positive and adverse effects on man and his environment. It has brought reward to people all over the globe, higher incomes and material welfare, lower sickness and deaths rates, greater knowledge and freedom. The aftermath of it is pollution, environmental degradation and destruction of resources. Indeed poorer countries do not enjoy the benefits of development rather, they disproportionately suffer the cost.[72]

            For better understanding of the sustainable development different dimensions are being considered. In the context of United Nations (UN) World Committee on Environment and Development, sustainable development is defined as:

“Development that meets the need of the present without compromising the ability of the future generations to meet their own needs” [73]

            Sustainable development is a policy by which the environment can be protected from pollution, degradation and or restored, replaced or restituted after degradation. It involves economic and development activities that meet the needs of the present generation without compromising, reducing or destroying the ability of the future   generation to meet their needs.[74] Sustainability rests on three pillars, namely, economic, social and environmental activities that promote the ability of the present and future generations to live within the earth’s capacity to support us.

            Sustainable development is highly related to the environment. The three issues involved are environmental management, environmental resource analysis/evaluation, and environmental protection/conservation. Also, Habitat 1994, stated in its elaboration that sustainable development “emphasizes how decisions and actions today can affect the future, especially in relation to natural resources availability, environmental health and destruction and global ecosystems”.[75] Sustainable development is fundamentally concerned with the two-way relationship between development and the environment. It is now clear that more attention has to be exercised in order to live a balanced life within the environment that should be kept away from destruction. The environment is the focal point in the drive for development in various sectors and institutions, stressing that there would be no development without the environment.

            When the World Commission on Environment and Development presented their 1987 report, “Our Common Future”, they sought to address the problem of conflicts between environment and development goals by formulating a definition of sustainable development as quoted above. In the extensive discussion and use of the concept since then, there has generally been recognition of three aspects of sustainable development[76] namely:

• Economic: An economically sustainable system must be able to produce goods and services on a continuing basis, to maintain manageable levels of government and external debt, and to avoid extreme sectoral imbalances which damage agricultural or industrial production.

• Environmental: An environmentally sustainable system must maintain a stable resource base, avoiding over-exploitation of renewable resource systems or environmental sink functions, and depleting non-renewable resources only to the extent that investment is made in adequate substitutes. This includes maintenance of biodiversity, atmospheric stability, and other ecosystem functions not ordinarily classed as economic resources.

• Social: A socially sustainable system must achieve distributional equity, adequate provision of social services including health and education, gender equity, and political accountability and participation.

            Clearly, these three elements of sustainability introduce many potential complications to the original simple definition. The goals expressed or implied are multidimensional, raising the issue of how to balance objectives and how to judge success or failure. For example, what if provision of adequate food and water supplies appears to require changes in land use which will decrease biodiversity? What if non-polluting energy sources are more expensive, thus increasing the burden on the poor, for whom they represent a larger proportion of daily expenditure? Which goal will take precedence?

            In the real world, we can rarely avoid trade-offs, and as Richard Norgaard[77] points out, we can “maximize” only one objective at a time. Norgaard concludes that:

“It is impossible to define sustainable development in an operational manner in the detail and with the level of control presumed in the logic of modernity.”[78]

The strong normative nature of the sustainable development concept makes it difficult to pin down analytically. Nonetheless, the three principles outlined above do have resonance at a commonsense level. They satisfy the criterion set forth earlier for a powerful, easily grasped concept which can have wide applicability. Surely if we could move closer to achieving this tripartite goal, the world would be a better place – and equally surely we frequently fall short in all three respects.

            Sustainable development has been described to be an ancient concept that requires that any development undertaken takes into consideration the needs of the current generation without endangering the needs of the future generations to benefit from it.[79]

Judge Weeramantry, in the Gabcikovo-Nagymaros case[80] stated that

‘‘Sustainable development is thus not merely a principle of modern international law. It is one of the most ancient of ideas in human heritage. Fortified by the rich insights that can be gained from millennia of human experience, it has an important part to play in the service of international law.’’

It therefore follows that for any development project to be considered sustainable, it should actively and meaningfully involve the individuals and they should benefit from it without compromising the ability of the future generation to benefit too. As regards environmental rights, this definition calls for advancement of sustainable development and at the same time the respect for and promotion of environmental rights.

INTERNATIONAL AND REGIONAL INSTRUMENTS ON PROMOTION OF SUSTAINABLE DEVELOPMENT

            International legal instruments take the form of a treaty (also called agreement, convention, or protocol) that binds the contracting states to the negotiated terms. When negotiations are completed, the text of a treaty is established as authentic and definitive and is "signed" by the representatives of states. A state can agree to be bound to a treaty in various ways. The most common are ratification or accession. A new treaty is ratified by those states that have negotiated the instrument. A state that has not participated in the negotiations may, at a later stage, accede to the treaty. The treaty enters into force, or becomes valid, when a pre-determined number of states have ratified or acceded to the treaty.

When a state ratifies or accedes to a treaty, that state may make reservations to one or more articles of the treaty, unless reservations are prohibited by the treaty. Reservations may normally be withdrawn at any time. In some countries, international treaties take precedence over national law; in others a specific law may be required to give a ratified international treaty the force of a national law.[81] Practically, all states that have ratified or acceded to an international treaty must issue decrees, change existing laws, or introduce new legislation in order for the treaty to be fully effective on the national territory.

            The binding treaties can be used to force governments to respect the treaty provisions that are relevant for the human right to adequate food and water. The non-binding instruments, such as declarations and resolutions, can be used in relevant situations to embarrass governments by negative public exposure; governments who care about their international image may consequently adapt their policies.[82]

The following are the international treaties, declarations and commitments that address the human right to sustainable development:

Universal Declaration of Human Rights (1948)[83]

            The Universal Declaration of Human Rights (UDHR) was the first international document to articulate inherent dignity of the human person and address rights relating to development, including the right to take part in government; realization of all economic, social and cultural rights that aid the development of personality; fair employment; adequate standard of living; education directed toward development of the human personality; enjoyment of scientific advancement; an international environment and order in which all rights can be realized.

International Convention on Elimination of All Forms of Racial Discrimination (1965) Article 5 of this convention asserts there should be no difference in the level of enjoyment of civil, political, economic, social and cultural rights based on race, colour or ethnicity. Rights listed pertinent to development are: participation in elections, equal employment and pay, housing, health services and education.

International Covenant on Economic, Social and Cultural Rights (1966)[84]

This treaty asserts the right of every person to self-determination in order to develop in all three economic, social and cultural fields. Articles 6 and 7 define the right to employment in order to achieve economic stability. Working conditions should be safe and healthy, and every worker should receive a fair wage to ensure a decent living for him/herself and his/her family. Every person has the right to an adequate standard of living attained by having access to adequate food, housing, clothing and the continual improvement of conditions. To meet food needs states need to improve methods of production, conservation and distribution by using all available technical and scientific information. States should also use available information to more efficiently use natural resources. Every person has the right to the highest attainable level of physical and mental health. Everyone should have access to education, and enjoy the benefits of scientific progress.

Convention on the Elimination of Discrimination against Women (1979)[85]
The Convention on the Elimination of Discrimination against Women, usually abbreviated as CEDAW, states that nations have a responsibility to implement legislation that supports and ensures the development, advancement and equality of women. Women should be equal to men in their ability to participate in elections, policy-making, and holding public office. Women should have access to equal education opportunities, equipping them with the skills to make career choices. Women should have equal employment and enjoyment of benefits. Women should have access to loans and credit and benefit from rural development through participation in planning, access to health care, inclusion in agricultural credit, reform and resettlement schemes, and adequate living conditions.

Declaration on the Right to Development (1986

This declaration defines the right to development as a living environment in which all fundamental freedoms can be realized through participation, contribution and enjoyment of economic, social, cultural and political development. The right to development gives every person the right to self-determination, participation in formulating policies that encourage development, as well as an equal share of the benefits. Full realization of the development of a state requires international co-operation, with more developed countries aiding less developed countries. In fostering a state in which human rights are implemented and respected, states must actively work to eliminate activity that violates human rights. States must also work to ensure that all people have equal access to education, health services, food, housing, employment and fair wage, and peace and security.

Convention on the Rights of the Child (1989)[86]

The treaty commits states to providing children with the means to attain the highest possible level of health. States commit to combating diseases and malnutrition; major health problems for children, through provision of nutritious food and clean water. Every child should enjoy a standard of living that promotes his/her physical, mental, spiritual, moral and social development. Education should be provided for all children, both general and vocational, to assist each child in realizing his/her own potential and equip children with the skills needed to successfully participate in a free society. Children should be protected from unfair working conditions that limit their formal education and are harmful to development.

Convention (No. 169) concerning Indigenous and Tribal Peoples in Independent Countries (1989) [87]

This convention asserts that indigenous people have the right to define their own priorities regarding development that affects their lives, beliefs, institutions, spiritual well-being and lands; as well as maintain control over their own development. Indigenous people have the right to participate and contribute to national and regional development plans that affect them. Indigenous people have the right to continual improvement of living conditions, and continual economic growth. Indigenous people have the right to government study of the impact of development plans on indigenous culture before the implementation of such projects. Indigenous people have the right to protection of their environment.

Rio Declaration on Environment and Development (1992)

This declaration introduces environmental conservation as a key element to sustainable development. Development projects must meet the needs of both present and future generations. This means that humans need to have the ability to live "a healthy and productive life in harmony with nature". This declaration also emphasises the importance of poverty eradication as a means to achieve development.

African Charter on Human and People’s Rights 1986[88]

The African Charter on Human and People's Rights states that "all people shall have the right to their economic, social and cultural development with due regard to their freedom and identity and in the equal enjoyment of the common heritage of mankind." The articles within the Charter address the rights of people to participate democratically in their government; to work with equal pay and benefits; to enjoy physical and mental health and well-being; to receive an education with due respect and protection for traditional values. All of these rights should be enjoyed in an environment favourable for development.

African Charter on the Rights and Welfare of the Child (1990)[89]

This treaty stipulates special provisions of refugee children that are unaccompanied by parents or guardians. The formation of the African Union in 2001 set the stage for a new strategy on furthering African development. 2001 also saw the emergence of the New Africa Initiative (NAI), a commitment to African development conceptualized by African leaders. African leaders involved committed to improving the quality of life in their countries through poverty eradication and the implementation of political systems of good governance, democracy, and realization of all human rights. The document drafted that contains the commitments and strategies of implementation is called The New Partnership for Africa's Development (NEPAD). NEPAD is the framework for African countries as well as the international community to draw from in order to support African Development.

European Social Charter (1961)

The focus of the European Social Charter is to create a social environment in which all people have the ability to attain and enjoy economic advancement and security. The Charter addresses the right to employment and fair working conditions. The Charter offers protection to children and pregnant women within the work environment. Everyone has the right to receive vocational guidance and training so as to seek out employment of personal interest. Social security as well as protection and inclusion of disabled persons and migrant workers in the workplace are also included in the Charter.

Charter of the Organization of American States (1948):[90]
The charter guarantees access to proper nutrition by increasing production and availability, and diversifying production.

Additional Protocol to the American Convention on Human Rights in the area of Economic, Social, and Cultural Rights (Protocol of San Salvador) (1988) [91]

This recognizes the human right to adequate nutrition. States must take steps to increase food supply through improved production and distribution.

RELATIONSHIP BETWEEN ENVIRONMENTAL RIGHTS AND SUSTAINABLE DEVELOPMENT

Sustainable human development seeks to expand choices for all people-women, men and children, current and future generations while protecting the natural systems on which all life depend.[92] Moving away from a narrow, economy-centred approach to development, sustainable human development places people at the core, and views humans as both a means and an end of development. Thus sustainable human development aims to eliminate poverty, promote human dignity and rights, and provide equitable opportunities for all through good governance, thereby promoting the realization of all human rights - economic, social, cultural, civil and political. The promotion of environmental rights is of particular relevance in the context of globalization and its potential for excluding and marginalizing weak members of the international community and people with limited resources most especially the indigenous people[93]. Environmental rights afford protection against such exclusion and marginalization.[94]

Environmental rights and sustainable human development are interdependent and mutually reinforcing. Development is unsustainable where the health of the people are endanger by virtue of environmental degradation and pollution, where rule of law and equity do not exist; where natural resources are confiscated or denied under whatever guise; or where large numbers of people live in abject and degrading poverty. Similarly, environmental rights are enhanced when equity or poverty reduction programmes or development meets the need of the present without compromising the ability of the future generations to meet their own needs. Sustainable human development and environmental rights will be undone in a repressive environment where threat or disease prevails, and both are better able to promote human choices in a peaceful and pluralistic society.[95]

A critical dimension of the Universal Declaration of Human Rights is its linking of rights with responsibilities. It is the responsibility of every individual and every organ of society to promote respect for human rights and "to secure their universal recognition and observance." All human beings "should act towards one another in a spirit of brotherhood."

Article 29 states: "Everyone has duties to the community in which alone the free and full development of his personality is possible." These concepts from the Universal Declaration are important in the context of sustainable human development; by implication social capital is a critical factor for development, and full development of man is only possible in a congenial environment.

Rio Declaration on Environment and Development 1992 introduces environmental conservation as a key element to sustainable development. Development projects must meet the needs of both present and future generations. This means that humans need to have the ability to live "a healthy and productive life in harmony with nature". This declaration also emphasises the importance of poverty eradication as a means to achieve development.

The 1986 UN Declaration on the Right to Development states that development is a human right. That proclamation was strengthened by the Declaration of the 1993 UN World Conference on Human Rights, which says that "the right to development is an inalienable human right and an integral part of fundamental human freedoms." This view was confirmed at the UN global conferences on population and development (Cairo) and women (Beijing) and at the World Summit on Social Development (Copenhagen).

Environmental rights and sustainable human development are inextricably linked, complementary and multidimensional. That is perhaps is nowhere better summarized than by the UN Working Group on the Right to Development (October 1995), which states that the right to development is:

“multidimensional, integrated, dynamic and progressive. Its realization involves the full observance of economic, social, cultural, civil and political rights. It further embraces the different concepts of development of all development sectors, namely sustainable development, human development and the concept of indivisibility, interdependence and universality of all human rights. . . . Realization of the right to development is the responsibility of all actors in development, within the international community, within States at both the national and international levels, within the agencies of the United Nations system”.

A fundamental human freedom is the freedom from environmental woes. Poor living condition and unfriendly environment is a human rights violation, and freedom from polluted and degraded environment is an integral and inalienable human right.

HUMAN ENVIRONMENTAL RIGHTS’ CHALLENGES ASSOCIATED WITH SUSTAINABLE DEVELOPMENT IN NIGERIA



Sustainable development raises complex human environmental and social-economic rights issues. These issues relate to all stages of the planning, execution and sustainability of the development. For convenience, we discuss the main human environmental and social-economic rights issues under the below headings. While these are not the only rights issues that arise in relation to sustainable development, they appear to be the most significant.



Right to Self-Determination: Autonomy, Culture and Land

The first issue that arises is the very decision to build developmental projects and the political and moral justifications given for it. If one adopts a narrow understanding of the right to development, then the state’s right to promote developmental projects for ensuring respect for economic and social rights of people - water, electricity, sanitation, roads etc – will take precedence. However, if one adopts the Declaration on Right to Development approach, the communities that stand to be most affected by the projects need to approve the decision to build them because such projects directly affect their environmental rights. They have the right to determine the sort of development that project will bring, because they have the right to self-determination and permanent sovereignty over their natural resources and right to good environment as part of their right to development.[96]



Doctrinally, this approach entails of at least three components: first, the autonomy of these communities must be ensured, through appropriate changes in the domestic constitutional structure or through special legislation. Second, the cultural rights of project-affected communities must be respected. Here, international law has developed norms relating, for example, to the rights of ethnic, linguistic and cultural minorities, as well as the rights of indigenous peoples through recent UN declarations.[97] These norms must be codified in domestic law and capable of being enforced in courts. The third doctrinal component relates to land rights, relating both to possession and use. There is the initial legal requirement to respect the possession rights of communities with respect to land, deriving from the doctrine of communal property rights.



There is also a legal requirement to respect “use rights” of communities in order to ensure their livelihoods, which are often derived from the land. As such, a massive eviction of people for the sake of sustainable development must be assessed with regard to the use rights of these communities before the evictions took place. It is needless to mention the importance of land for ensuring cultural survival of many of these communities as well. Fundamental cases in point are the plights of the Gbagyi People[98] of the Federal Capital Territory of Nigeria and the Niger Delta[99] people of Nigeria.



Right to Participation

Another human rights issue that is associated with the sustainable development is the right to participation. People must be and should be part of the “happenings” in their environments. This must be distinguished from the initial right to determine whether a project is needed or not, which is not an issue of participation but self-determination. Participation rights begin to be relevant once the initial decision has been taken to build.



At this point, there are several questions that need to be settled: participation of whom, when, in what, and how. First, all project-affected communities must participate, with special reservations for women, and all disparate groups.[100] The participation must begin at the level of project design and planning and consideration of alternatives and extend all the way through monitoring and maintenance of the project. This is harder to achieve but the concerned state(s) could work out guidelines for this purpose. Third, the affected communities must be able to participate in different levels of decision-making, from the local (project), state (program), national and international levels. This does not have to be continuous, but must be effective enough to be real. Finally, a process for participation must be ascertained that will not automatically put some parties in a better position. This process must be transparent, time-bound, flexible and viable in terms of material and technical support.[101]

Legally, these requirements are not fully articulated yet in terms of development projects.

Still, the right to participation is normatively very-well grounded in the International Bill of Rights and provides a framework within which these requirements could conceivably be worked out.

Right to Life: Livelihood and Environment

It is needless to say that decisions to build or not to build projects affect the right to life of individuals. They may so do directly, as when right to life is violated through displacement of peoples’ habitat (houses and communities) like we see in Nigeria capital city and Niger Delta region or through police/private coercion against civil disobedience to the project. However, it also results in violation of right to life when individuals are deprived of their means of livelihoods and subsistence such as farmlands as a result of massive evictions and displacement. As the Indian Supreme Court affirmed in a landmark case in Olga Tellis & Ors v. Commissioner of Bombay & Ors[102], right to livelihood is part of right to life. This principle has begun entering the corpus of international law through affirmation by UN bodies.



Also included in the right to life is the right to environment, which makes life worth living, materially and culturally. Increasingly, many new constitutions adopt this position, such as the case in Nigeria[103]and some ‘old’ constitutions such as India’s, has already taken this position through judicial determinations. This right is undoubtedly under threat in most instances when projects for sustainable development are built.



Rights of Vulnerable Groups

The rights of vulnerable groups such as indigenous peoples and women are relevant to the human rights normative corpus that relates to sustainable development. Oftentimes sustainable development projects are built in areas inhabited by indigenous communities whose cultural rights are already under threat. Consequently, large numbers of them get displaced and become ‘development refugees’, with devastating impacts on their communities and culture. Similarly, women form a large segment of rural households in many developing countries and are significantly affected when they lose land to projects.[104]

International human rights law has a well-developed normative framework relating to vulnerable groups.[105] The crux of the legal obligation here is to ensure that special social safety measures are available, which are targeted towards the conditions of vulnerable groups. The formulation of such programs has become easier in recent years with their adoption by development agencies as part of their assistance. Virtually every agency; from the UN to bilateral ones have special programs that target vulnerable groups in most developing countries.



Right to remedy

The final human environmental rights issue that arises in the building of projects for sustainable development is the right to a remedy, which is itself a human right, guaranteed in Article 2 of the International Bill of Rights. This is a crucial right for project-affected peoples and individuals, since most decisions relating to projects are taken at the administrative level, locally or nationally, which cannot be easily challenged in courts of many countries.[106] These decisions arise at every stage of the projects building process, from planning, to building to monitoring. Often, due to the nature of the extant development process, the project-affected peoples come to know about actions that have been taken without their knowledge or consent. Therefore, they need a quick and efficacious remedy that can halt on-going violations and prevent future ones. The right to remedy is therefore crucial to the humane building and sustainability of projects.

However, the right to remedy goes beyond formal judicial remedies and covers a range of accountability systems that need to be in place and functioning effectively, such as media and NGOs, communication systems and available informal mechanisms.[107]

PROTECTING AND REGENERATING THE ENVIRONMENT IN NIGERIA

Having seen that sustainable development cannot be complete without regards for human environment, it follows that while we pursue plans for development, such plan must consciously seek to protect and regenerate the environment if man must continue to survive.

Laws can help protect and renew the environment (regulating pollution, deforestation and so on) for current and future generations. In developing countries like Nigeria especially, such laws can be firm in ensuring the survival of millions of people whose lives and livelihoods depend on their natural surroundings (water, land, agriculture, forestry, air). For example, environmental laws can help mitigate social conflicts that arise from competition over scarce natural resources (peasants against private forest contractors, squatters against urban residents and developers). Thus, like poverty and gender, the environment has crucial human rights dimensions that a human rights approach can help address. Development must be concerned with protecting and rehabilitating environments and must be environmentally sustainable. From human environmental rights perspectives, this would require:

v Conserving ecosystems and natural resources for future generations.

v Assessing the environmental and social impacts of development activities, and setting and enforcing standards to govern them.

v Providing environmental education.

v Encouraging free and meaningful participation in these activities.

Without the above actions being integrated into sustainable developmental plans, humanity is bound to face more environmental dangers that are man-incited besides the natural environmental challenges, which will eventually defeat whatever efforts put together for betterment of humanity.



CONCLUSION

The environment certainly is very important to man, being the domain where all desires of man are accomplished. The quest of man to promote his well-being through productivity and creativity has necessitated the exploitation activities by man, a bona causa of environmental disaster and cataclysm. In other words, sustainable development has spurred efforts in all spheres which include manufacturing, processing, industrialization, housing, construction, agriculture, rural and urban growth and development which have most times denied man of his environmental rights as being witnessed in Nigeria today.



This paper has examined the meaning of human environment, and argued that environment has much influence on human life and well-being of social communities. It has also traced the history of environmental law and governance by looking at the major Treaties and Declarations as well as laws, internationally and domestically. Also argued herein is that, environmental rights are now becoming enforceable in some jurisdiction’s national courts. Attempt has also been made to discuss sustainable development from economic, environmental and social perspective. Relevant international and regional laws have also been considered among other things.



It has been argued that sustainable development is directly related to environmental rights, as many human environmental rights challenges are posed by human efforts towards sustainable development culminating in the position that true sustainable development cannot be achieved without regards for human environmental rights. Therefore, the environment stands the focal point in the drive for sustainable development in various sectors and institutions of man; hence, the reasoning of using the law to regulate and ensure a safer environment becomes fundamental in our ways of life.



From the foregoing premise, it is my humble submission that environmental rights should be seen beyond social-economic and cultural rights category of human rights as presently the constitutional position in Nigeria. Rather, it should be integrated as one of the core fundamental human rights, and like all other fundamental human rights, they should be enforceable in our national courts. It may be, however, that International Convention on Human Rights is capable of broadly protecting our environment, it may pass without notice, huddled in a variety of things, and thrown into the general miscellany of life. Even though our natural environment is comprised of individual parts comprising a whole, our environmental community does not operate that way.



No doubt, every other human right depends in my own view on the environment i.e right to good environment. Right to life can only be guaranteed in a liveable and congenial habitat. Where the environment is depleted and bastardised in such a way that it becomes inhabitable; right to life as well as the hope of man and his goals of attaining better well-being through sustainable developmental efforts will all become a mirage. International law on the environment should be strengthened by drawing up a clear Treaty on environmental rights and protection, promote its adoption and enforceability by all nations in their various national courts.



Violation of environmental laws should also be made a capital offence because it goes down to right to life. Environmental degradation is as good as gradual genocide. This is because; it is not only a crime against the present generation but against the future generation. Finally, development can only be sustained in an atmosphere of good and habitable environment, hence the need for voracious education and promotion of environmental friendly programmes.

Finally, there should also be environmental institutional reforms at all levels of governance toward a more proactive system of environmental preservation.  This I submit should be given attention, even much more than the so-called HIV/AIDS projects. Without good environment, life becomes brutish and brusque.



[1] Obabori, Ekpu, and Ojealaro; An Appraisal of the Concept of Sustainable Environment under Nigerian Law, J Hum Ecol, (2009), 28(2), page 135.

[2] See Section 37. NESREA Act 2007 by its Section 36 repealed Federal Environmental Protection Agency Act (FEPA Act), Cap F10 Laws of Federation of Nigeria (LFN)2004

[3] See Section 20 of the Constitution of the Federal Republic of Nigeria 1999 (1999 Constitution)

[4] http://www.environment.gov.za/enviro-info/env/rights.htm (accessed on the 10th March 2010)

[5] Ibid.

[6] Ibid.

[7] See Declaration of the United Nations Conference on the Human Environment

[8] http://www.whrc.org/policy/sustain_develop.htm (accessed on 20 March 2010). The preparatory process leading to the World Summit on Sustainable Development included national, sub-regional/regional, and global level meetings and activities.

[9] Prior to the summit, the UN Secretary General outlined five priority areas on which the conference should focus: water and sanitation, energy, health, agriculture, and biodiversity protection and ecosystem management. These became known as the “WEHAB” issues. Products of the summit include the “Johannesburg Declaration on Sustainable Development” and the “Plan of Implementation of the World Summit on Sustainable Development.” Several “Partnership Initiatives” between governments, civil society, and the private sector on the themes mentioned above were also proposed, and funding, both new and reaffirmed, was pledged for several activities.

[10] See Obi Ogbalu ‘Environmental regulation in Nigeria’ Oil and Gas Law &Taxation Review Vol. 10

Issue 6.

[11] Oluwatoyin Adejonwo-Osho; “The Evolution of Human Rights Approaches to Environmental Protection in Nigeria” www.iucnael.org/index.php?option=com_docman&task (accessed on 20 March 2010)

[12]  See http://www.nesrea.org/faq.php#1 (accessed 23 February 2011).

[13] NESREA Act 2007 by its Section 36 repealed Federal Environmental Protection Agency Act (FEPA Act).

[14] See n12 above.

[15] Ibid.

[16] The NESREA Act was signed into law by President Umaru Musa Yar’Adua, GCFR, and this was published in the Federal Republic of Nigeria Official Gazette No. 92, Vol. 94 of 31st July, 2007.

[17] See n12 above.

[18] http://www.unac.org/youth_sd/youth_e/HRandSD-EN-PDF.pdf

[19] For Example, Universal Declarations of Human Rights (UDHR)

[20] See Article 12

[21] The Aarhus Convention adopted on 25th June 1998 is a new kind of environmental agreement. The Convention links environmental rights and human rights; acknowledges that we owe an obligation to future generations among others. see http://www.unece.org/env/pp/, The broad aim of UNECE’s environment activities is to safeguard the environment and human health, and to promote sustainable development in its member countries in line with Agenda 21. http://www.unece.org/env/welcome.html (accessed 16 March 2010).

[22] UNEP has a rich history assisting governments in obtaining environmental information for decision-making, enhancing global and regional environmental cooperation, developing and applying national and international environmental law, advancing national and regional implementation of environmental objectives, and bridging major groups and governments in policy development and implementation processes. http://www.unep.org/environmentalgovernance/ (accessed on 16 March 2010)

[23] http://www.unac.org/youth_sd/youth_e/HRandSD-EN-PDF.pdf op.cit

[24] Ibid.

[25] www.foei.org/en/.../environmental-rights-are-human-rights (accessed on the 16 March 2010)

[26] Ibid.

[27] http://www.cceia.org/resources/publications/dialogue/2_11/a_intro/4442.html(accessed on the 16 March 2010)

[28] By “climate convention” I mean those various treaties and international agreements (including but not limited to the 1997 Kyoto protocol) developed under the auspices of the FCCC.

[29] Steve Vanderheiden; ‘Climate Change, Environmental Rights, and Emissions Shares’,

http://international-political-theory.net/papers/vanderheiden-climate-change&env-rights.pdf (accessed on the 18 March 2010)

[30] Tim Hayward, Constitutional Environmental Rights (New York: Oxford University Press, 2005), p. 7.

[31]  Ibid.

[32]  Op cit. p. 11.

[33] Op cit. pp. 47-48.

[34] Steve Vanderheiden, op cit.

[35] See Principle I, Declaration of the United Nations Conference on the Human Environment (1972).

[36] Steve Vanderheiden op cit.

[37] Ibid

[38] Ibid.

[39]  See (e/cw.4/Sub.2/1994/9). In July 1994, Mrs Fatima Zohra Ksentini, Special Rapporteur of the UN Sub-Commission on Prevention of Discrimination and Protection of Minorities, submitted a final report on Human Rights and the Environment. The report originated in a decision of the Sub-Commission of 31 August 1989 (decision 1989/108) to ask Mrs Ksentini to prepare a note setting forth methods by which a study could be made of the problem of the environment and its relation to human rights. Mrs Ksentini's final report included conclusions and recommendations, and her proposal for draft principles on human rights and the environment addresses in some detail issues relating to Indigenous peoples and the environment.

[40] See Fisheries Jurisdiction Case (United Kingdom v. Iceland); Southern Bluefin Tuna Cases (New Zealand v. Japan) (Australia v. Japan) (Requests for Provisional Measures); Fisheries Jurisdiction Case (Federal Republic of Germany v. Iceland);  Nuclear Tests Case (New Zealand v. France);  Case concerning Certain Phosphate Lands in Nauru (Nauru v. Australia); Southern Bluefin Tuna Case (Australia and New Zealand v. Japan);

[41] See Indian cases of Municipal Council Ratlam v Vardhichand and ors. AIR 1980 SC 1622; and LK Koolwal v State of Rajasthan and ors AIR 1988 Raj.2

[42] http://www.cceia.org/resources/publications/dialogue/2_11/a_intro/4442.html op cit.

[43] Bruch, C., Et al Constitutional Environmental law: Giving Force to Fundamental Principles in force, 26,

Colum. J. Envtl. L. 131, (2001) at 133-160

[44] See the cases of Rural Litigation and Entitlement Kendra v. Uttar Pradesh AIR 1985 SC 652; Subhash Kumar v. State of Bihar AIR 1991 SC 420 among others.

[45] In the case of Wiwa v. Royal Dutch Company, the relatives of the Ogoni 9 murdered activists instituted the action under the Alien Torts Act of the US. The defendants were charged with complicity in human rights abuses and environmental abuses against the Ogoni people in Nigeria. An important hallmark of the case is that the court decided that the plaintiffs can institute an action in a US court for the acts committed outside a US jurisdiction but involving a US citizen or corporation.

[46] Shela Zia v. WAPDA PLD 1994 SC 693      

[47] Other notable countries are Philippines, Brazil, Chile, Columbia, Ecuador, Bangladesh, and Nepal.

[48] Oluwatoyin Adejonwo-Osho, op cit.

[49] M.A Ajomo, ‘An Examination of Federal Environmental Laws in Nigeria’, in M.A Ajomo and O. Adewale

(eds), Environmental law and Sustainable Development in Nigeria (Nigerian Institute of Advanced Legal

Studies, 1994.

[50] See article by Ebeku, K., Judicial Attitudes to Redress for Oil Related Environmental Damage in Nigeria, RECIEL12(2) 2003, 199-208

[51] Ibid.

[52] Frynas, J., Oil in Nigeria: Conflict and Litigation between Oil Companies and Village Communities Transaction

Publishers, 2000 34-36

[53] 1996] 4 NWLR (Pt 445) 657

[54] [1997] 6 NWLR (Pt 508) 236.

[55] [1993] 7 NWLR (Pt 304) 203.

[56] [1997] 1 NWLR (Pt 480) 148.

[57] [1999] 3 NWLR (Pt 593) 1

[58] Oluwatoyin Adejonwo-Osho, op cit.

[59] [1995] 3 NWLR (Pt 382) 148

[60] n58 supra

[61] Adopted by the United Nations General Assembly Resolution No. 41/128 of 4 December 1986

[62] Riddell R.; Minorities, Minority Rights and Development (2002), Issues Paper by Minority Rights Group International. page. 13.

[63] The Report of the African Commission’s Working Group  p 21.

[64] Jonathan M. Harris; “Basic Principles of Sustainable Development,” Global Development and Environment Institute Working Paper 00-04, http://ase.tufts.edu/gdae/publications/Working_Papers/Sustainable%20Development.PDF (accessed on 18 March 2010.

[65] Ibid.

[66] Backhouse Roger ; A History of Modern Economic Analysis . Oxford, UK: Basil Blackwell (1991)

[67] Streeten, Paul , with Shahid Burki, Mahbub Ul Haq, Norman Hicks, and Frances Stewart (1981).

‘First Things First: Meeting Basic Human Needs in the Developing Countries’, Published for the World

Bank. New York and Oxford: Oxford University Press.

[68] Jonathan M. Harris op cit

[69] ibid

[70] Obabori, Ekpu, and Ojealaro, op cit.

[71] Segynola A.A 2002. Environmental Degradation Coping Strategies and Sustainable Development: Implication for Rural industrialization in Nigeria. In: GED Omuta, EA Ikhuoria (Eds.): Geography and Sustainable Development. The Nigeria Geographical Association, Chapter 13, pp. 123-130.

[72] Obabori, Ekpu, and Ojealaro, op cit.

[73] See The Brundtland Report, World Commission on Environment and Development (WCED), Our Common

Future New York: Oxford University Press, UN Doc. A/42/47 (1987), Agenda 21

[74] Obabori, Ekpu, and Ojealaro, op cit.

[75] Habitat 1994; Sustainable Human Settlement Development Implementing Agenda 21. Nairobi: Habitat.

[76] See e.g. Holmberg ed. (1992), Making Development Sustainable, Chapter 1; Reed ed. (1997), Structural Adjustment, the Environment and Sustainable Development, Chapter 2.

[77] Norgaard, Richard B. (1994 ). Development Betrayed: The End of Progress and a Coevolutionary

Revisioning of the Future, p. 22. New York and London: Routledge.

[78] Ibid

[79] See definition of sustainable development in the Brundtland report, op cit.

[80] Gabcikovo-Nagymaros Project (Hungary v Slovakia), ICJ Reports (1997) 7, Separate opinion, p 88.

[81] For example, Section 12 of Constitution of the Federal Republic of Nigeria 1999 requires international Treaties acceded to by Nigeria to be domesticated before it can have the force of law in Nigeria.

[82] http://www.hrea.org/index.php?doc_id=444 (accessed on 19 March 2010)

[83] See Articles 21, 23, 25, 25, 26, 27,and 28 UDHR

[84] See Articles 1,6, 7,11,12, and 13

[85] See Article 3, 7, 10, 11, 13, and 14

[86] See Articles 24, 27, 28, 29, and 32

[87] See Articles 6 and 7

[88] See Articles 13, 15, 16, 17, 22, and 24

[89] See Article 13

[90]  See Article 34

[91] See Article 12

[92] http://www.undp.org/governance/docs/HR_Pub_policy5.htm (accessed on 18 March 2010).

[93] ‘Indigenous Peoples Among Earth’s Poorest, World Bank Head Says’ available on US State Department

website;http://usinfor.state.gov/xarchives/display.html?p=washfileenglish&y=2004&m=September&x=20

004 0924162601 AKllennoCcM0.355587, 24 September 2004 (accessed on 19 September 2007)

[94] http://www.undp.org/governance/docs/HR_Pub_policy5.htm op cit.

[95] Ibid.

[96] Balakrishnan Rajagopal; Human Rights and Development http://oldwww.wii.gov.in/eianew/eia/dams%20and%20development/kbase/contrib/ins206.pdf (accessed on 20 March 2010)

[97] See UN Declaration on the rights of the indigenous people, op cit.

[98] The Gbagyi people of Nigeria are the indigenous people that own and occupied Abuja, the present Federal Capital Territory of Nigeria. The Nigerian government has denied them their right to self determination. All their lands have been confiscated in the name of sustainable development with no or inadequate compensations. This has impoverished the people and their generations yet unborn as their gifts of nature have been removed from them by the Nigerian government.

[99] The Niger Delta is one of the world's largest wetlands, and the site of most of Nigeria's biodiversity. The region is also the area where the main oil reserves are found in Nigeria.

[100] Balakrishnan Rajagopal op cit.

[101] Ibid

[102] AIR 1986 SC 180, or 1985(2) SCALE 5.

[103] See Section 20 of Nigerian Constitution 1999 which states “The State shall protect and improve the environment and safeguard the water, air and land, forest and wild life of Nigeria.”

[104] Balakrishnan Rajagopal op cit.

[105] See Declaration on the Rights of the Indigenous people, op cit.

[106] Balakrishnan Rajagopal op cit.

[107] Ibid.

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