Revisiting corporate violations of human rights in Nigeria's Niger Delta region: Canvassing the potential role of the International Criminal Court

Martin-Joe Ezeudu

Barrister and Solicitor of the Supreme Court of Nigeria; PhD Candidate, Osgoode Hall Law School, York University, Toronto, Canada

SUMMARY

The international community awakened to the bitter reality of the failure of traditional international legal system to anticipate and embrace non-state actors at the early conceptualisation of their norms. This reality relates to the fact that transnational corporations that often wreak havoc in host states appear to be outside the ambit of international law, and therefore beyond its control. However, since the last two decades, governments and international business organisations have attempted to develop initiatives to fill the perceived gap. At the same time, the academic community has engaged in a discourse about the appropriate legal framework that may be deployed to ensure that transnational corporations are confined within a defined scope of international human rights obligations. Focusing on Africa, particularly on the oil-rich Niger Delta region of Nigeria, the article aims to engage in the debate. It takes a nuanced approach to the issue, and argues that an extension of the International Criminal Court's jurisdiction to transnational corporations is imperative. This would be a meaningful way of ensuring respect and compliance with human rights obligations by transnational corporations.

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* LLB (Nnamdi Azikiwe, Nigeria), LLM (Birmingham); Martin-JoeEzeudu@osgoode.yorku.ca. I am grateful to Prof Obiora Chinedu Okafor for his valuable comments on an earlier draft of this article. However, I am solely responsible for any errors that remain.
1 These actors have full legal personality under the domestic law of the states where they are incorporated. At international law, however, although their existence is acknowledged, they have no legal personality as the traditional international law does not countenance non-state parties. However, to the extent that they can be parties to certain international agreements or treaties, they can be said to be quasi-legal persons. See, generally, P Malanczuk Akehurst's modern introduction to international law (1997) 1-7 35-48 75-81 91-108.
2 M Ataman 'The impact of non-state actors on world politics: A challenge to nation states' (2003) 2 Alternatives (Turkish journal of International Relations) http://alterna-tivesjournal.net/volume2/number1/ataman2.htm (accessed 16 March 2011),         [ Links ] arguing that 'MNCs challenge the state sovereignty of the host countries. Host countries may lose control over their economies. They create political and social division and prevent the development of domestic industries in host countries.' Note that MNC, which stands for 'multinational corporation', is just another way of referring to TNC.
³ See, eg, MAL Miller Third World in global environmental politics (1995) 35, stating that 'Shell Oil's 1990 gross national income was more than the combined GNPs of Tanzania, Ethiopia, Nepal, Bangladesh, Zaire, Uganda, Nigeria, Kenya and Pakistan - countries that represent almost one-tenth of the World's population'; R McCorquodale 'Feeling the heat of human rights branding: Transnational corporations within the international human rights fence' (2001) 1 Human Rights and Human Welfare 1, capturing the economic strength of TNCs by revealing that 'more than half of the top 100 economies are corporations'; S Anderson & J Cavanagh 'Top 200: The rise of global corporate power' (Institute for Policy Studies) http://www.corpwatch.org/article.php?id=377 (accessed 16 March 2011), stating that '[t]he economic clout of the Top 200 corporations is particularly staggering compared to that of the poorest segment of the world's humanity. The Top 200 corporations' combined sales are 18 times the size of the combined annual income of the 1,2 billion people (24 per cent of the total world population) living in 'severe' poverty.' See also D Kinley & J Tadaki 'From talk to walk: The emergence of human rights responsibilities for corporations at international law' (2004) 44 Virginia Journal of International Law 931 933.
4 Kinley & Tadaki (n 3 above) 933; see also MT Kamminga 'Holding multinational corporations accountable for the human rights abuses: A challenge for the European Community' in P Alston et al (eds) The EU and human rights (1999) 533 554.
⁵ See the International Covenant on Economic, Social and Cultural Rights, adopted 16 December 1966, GA Res 2200 (XXI), UN Doc A/6316 (entered into force 3 January 1976).
6 See the International Covenant on Civil and Political Rights, adopted 16 December 1966; GA Res 2200 (XXI), UN Doc A/6316 (entered into force 23 March 1976).
7 Royal Dutch Shell's complicity in environmental degradation, destruction of farmlands, intimidation, torture and murder of Ogoni people in Nigeria had been the subject of litigation. See Wiwa v Royal Dutch Petroleum Co 226 F 3d 88 (2000), cert denied, 532 US 941 (2001); Social and Economic Rights Action Centre (SERAC) & Another v Nigeria (2001) AHRLR 60 (ACHPR 2001). It is also the centre of discussion in different scholarly articles: B Naanen 'Oil-producing minorities and the restructuring of Nigerian federalism: The case of Ogoni people' (1995) 33 journal of Commonwealth and Comparative Politics 46; EE Osaghae 'The Ogoni uprising: Oil politics, minority agitation and the future of the Nigerian state' (1995) 94 African Affairs 325; JG Frynas 'Corporate and state responses to anti-oil protests in the Niger Delta' (2001) 100 African Affairs 27; JI Dibua 'Citizenship and resource control in Nigeria: The case of minority communities in the Niger Delta' (2005) 39 African Spectrum 5; and CI Obi 'Globalisation and local resistance: The case of Ogoni versus Shell' (1997) 2 New Political Economy 137. Recently, CNN reported that pollution and environmental adversity from the operations of oil companies in the Niger Delta are creating a 'human rights tragedy' by exposing the local people to harm from poor health and loss of livelihood. See C Purefoy 'Nigeria oil company rejects damning amnesty report' CNN.com 1 July 2009 http://www.cnn.com/ 2009/WORLD/africa/07/01/nigeria.amnesty.report/index.html (accessed 16 March 2011). Again, the case of Doe v Unocal 963 F Supp 880 (CD Cal 1997) captures Unocal's involvement in forced labour, torture, murder and rape of villagers in the Tenasserim region of Myanmar, formerly known as Burma. These particular human rights violations are discussed further in the following articles: TA Bridgeford 'Imputing human rights obligations on multinational corporations: The Ninth Circuit strikes again in judicial activism' (2003) 18 American University International Law Review 1009; and L Bowersett 'Doe v Unocal: Torturous decision for multinationals doing business in politically unstable environments' (1998) 11 Pacific McGeorge Global Business and Development Law Journal 361. In India, Union Carbide Corporation (UCC) of USA is behind the 1984 catastrophic gas leakage in the city of Bhopal, which resulted in about 7 000 deaths and terminal illness in hundreds of thousands of people. See Amnesty International 'Clouds of injustice: Bhopal disaster 20 years on' http://www.amnesty.org/en/library/info/ASA20/015/2004 (accessed 16 March 2011); and U Baxi & T Paul Mass disasters and multinational liability: The Bhopal case (1986). Furthermore, Coca-Cola in Colombia and Phillips-Van Heusen in Guatemala have been reported to be involved in intimidation, torture, kidnapping, unlawful detention and murder of trade union members; and BHP Billiton in Papua New Guinea has also been reported to damage the environment and local people's means of livelihood. See Kinley & Tadaki (n 3 above) 934.
8 See the ILO Tripartite Declaration of Principles concerning Multinational Enterprises and Social Policy (1978) 17 International Legal Materials 422.
⁹ See the OECD Guidelines for Multinational Enterprises (1976) 15 International Legal Materials 967.
¹⁰ See European Commission Green Paper 'Promoting a European framework for corporate social responsibility' COM (2001) 366 final, 18 July 200.
¹¹ See eg the Australian Corporate Code of Conduct Bill 2000, Parliament of the Commonwealth of Australia, The Senate (Senator Bourne), A Bill for an Act to impose standards for the conduct of Australian corporations which undertake business activities in other countries, and for related purposes; Shell International Petroleum Company 'Statement of general business principles' in Business and human rights - A management primer (1999).
¹² See eg Amnesty International Human rights principles for companies http://www.amnesty.org/en/library/info/ACT70/001/1998 (accessed 16 March 2011).
¹³ See eg the Basic Code of Conduct covering Labour Practices adopted by the International Confederation of Free Trade Unions http://actrav.itcilo.org/actrav-english/telearn/global/ilo/guide/icftuco.htm (accessed 16 March 2011). For nn 8 to 13, see generally CF Hillemanns 'UN norms on the responsibilities of transnational corporations and other business enterprises with regard to human rights' (2003) 4 German Law Journal 1065.
¹⁴ In August 2003, the United Nations Sub-Commission on the Promotion and Protection of Human Rights approved Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights, by Resolution 2003/16, UN Doc E/CN 4/Sub 2/2003/L 11 http://www.etan.org/lh/misc/PetRegSub/uncorpnorms.htm (accessed 16 March 2011). For a detailed analysis of this norm, see D Weissbrodt & M Kruger 'Current development: Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights' (2003) 97 American Journal of International Law 901; Hillemanns (n 13 above).
15 A few examples include Wiwa v Royal Dutch Petroleum Co (n 7 above); Doe v Unocal (n 7 above); Filartiga v Pena-Irala 630 F 2d 886 887 (2r Circ 1980).
16 Kinley & Tadaki (n 3 above) 935.
17 As above.
18 Kinley & Tadaki (n 3 above); Kamminga (n 4 above); Bridgeford (n 7 above); Hil-lemanns (n 13 above); Weissbrodt & Kruger (n 14 above); CM Vazquez 'Direct vs indirect obligations of corporations under international law' (2005) 43 Columbia Journal of Transnational Law 927; S Joseph 'An overview of the human rights accountability of multinational enterprises' in MT Kamminga & S Zia-Zarifi (eds) Liability of multinational corporations under international law (2000) 75; JI Charney 'Transnational corporations and developing public international law' (1983) Duke Law Journal 748; R McCorquodale & P Simons 'Responsibility beyond borders: State responsibility for extraterritorial violations by corporations of international human rights law' (2007) 70 Modern Law Review 598.
19 This is in line with sec 30 of the Niger Delta Development Commission Act, ch N86, Laws of the Federation of Nigeria, 2004, which defines the 'member states' of the Niger Delta region for which the Commission was created.
20 LA Afinotan & V Ojakorotu 'The Niger Delta crisis: Issues, challenges and prospects' (2009) 3 African journal of Political Science and International Relations 191. Please note that there is contradictory information that the Niger Delta region covers about 50 000 square kilometres in HA Saliu et al 'Environmental degradation, rising poverty and conflict: Towards an explanation of the Niger Delta crisis' (2007) 9 Journal of Sustainable Development in Africa 275 277. Even Sinden (n 29 below) 3 reports the region as covering 70 000 square kilometres. It is difficult to reconcile these figures.
21 Afinotan & Ojakorotu (n 20 above). See also K Maier This house has fallen: Nigeria in crisis (2000) 84. However, note that Igbo and Yoruba are two of Nigeria's three major ethnic groups that include the Hausa-Fulani.
22 Obi (n 7 above) 140.
23 As above.
²⁴ U Idemudia 'Rethinking the role of corporate social responsibility in the Nigerian oil conflict: The limit of CSR' (2009) 21 Journal of International Development 1 7-8; U Idemudia 'Assessing corporate-community involvement strategies in the Nigerian oil industry: An empirical analysis' (2009) 34 Resources Policy 133 135.
²⁵ S Dolezal 'The systematic failure to interpret article iv of the International Covenant on Civil and Political Rights: Is there a public emergency in Nigeria' (2000) 15 American University International Law Review 1163 1191.
26 Ogoniland is the homeland of the Ogoni people. This is where Shell has the majority of its facilities in the region. It is in Rivers State and comprises several villages or settlements. It later became the centre of gruesome violations of human rights in the whole region.
27 Maier (n 21 above) 80.
28 M Watts 'Resource curse? Governmentality, oil and power in the Niger Delta, Nigeria' (2004) 9 Geopolitics 50 68.
29 Watts (n 28 above). See also A Sinden 'An emerging human right to security from climate change: The case against gas flaring in Nigeria' Social Science Research Network Electronic paper collection http://ssrn.com/abstract=1280934 3 (accessed 16 March 2011). This paper is now published as ch 8 in WCG Burns & HM Osofsky (eds) Adjudicating climate change - State, national and international approaches (2009).
30 MJ Watts 'Righteous oil? Human rights, the oil complex and corporate social responsibility' (2005) 21 AR Reviews In Advance 9 9.16.
31 E360 Digest 'Oil fouling the Niger Delta dwarfs the oil spill in the Gulf of Mexico' Yale Environment 8 July 2010 360 http://e360.yale.edu/digest/oil_foul-ing_the_niger_delta_dwarfs_the_oil_spill_in_the_gulf_of_mexico/2496/ (accessed 16 March 2011). See also J Vidal 'The Nigeria's agony dwarfs the Gulf oil spill: The US and Europe ignore it' The Guardian 30 May 2010 http://www.guardian.co.uk/world/2010/may/30/oil-spills-nigeria-niger-delta-shell (accessed 16 March 2011), arguing that '[t]he Deepwater Horizon disaster caused headlines around the world, yet the people who live in the Niger Delta have had to live with environmental catastrophes for decades'.
32 A Shinsato 'Increasing the accountability of transnational corporations for environmental harm: The petroleum industry in Nigeria' (2005) 4 Northwestern University Journal of Human Rights 186 192.
³³ Purefoy (n 7 above).
34 Quoting A Gaughran of Amnesty International, in the CNN report by Purefoy (n 7 above). See also A Tareri 'A rights-based approach to indigenous minorities: Focus on the Urhobo and Ogoni peoples of the Niger Delta in Nigeria' in F Emiri & G Deinduomo (eds) Law and petroleum industry in Nigeria: Current challenges (Essays in honour of justice Kate Abiri) (2009) 265 283.
35 U Idemudia 'The changing phases of the Niger Delta conflict: Implications for conflict escalation and the return of peace' (2009) 9 Conflict, Security and Development 307.
36 S Cayford 'The Ogoni uprising: Oil, human rights, and a democratic alternative in Nigeria' (1996) 43 Africa Today 183 189. See also JG Frynas 'The oil industry in Nigeria: Conflict between oil companies and local people' in JG Frynas & S Pegg (eds) Transnational corporations and human rights (2003) 99 104-105; Human Rights Watch 'The Ogoni crisis: A case study of military repression in Southeastern Nigeria' (1995) 7 Human Rights Watch Report (on Nigeria) http://www.hrw.org/legacy/reports/1995/Nigeria.htm (accessed 17 March 2011); Boycott Shell Essential Action 'Shell in Nigeria: What are the issues?' http://www.essentialaction.org/shell/issues.html (accessed 17 March 2011).
37 Boycott Shell Essential Action (n 36 above).
38 Human Rights Watch The price of oil: Corporate responsibility and human rights violations in Nigeria's oil-producing communities (1999) 124.
39 Cayford (n 36 above) 189. See also K Saro-Wiwa Genocide in Nigeria: The Ogoni tragedy (2005) 93.
40 Naanen (n 7 above) 63.
41 Cayford (n 36 above) 189-190.
42 Cayford (n 36 above) 190. See also Human Rights Watch Report (n 36 above); S Kretzmann 'Nigeria's "drilling fields": Shell Oil's role in repression' http://www.assatashakur.org/forum/afrikan-world-news/21226-shell-oil-game-oil-game-nigeria.html (accessed 17 March 2011); S Pegg 'The cost of doing business: Transnational corporations and violence in Nigeria' (1999) 30 Security Dialogue 473 476. Pegg's work indeed presents case-by-case details of the experiences of the Ogoni people at the joint hands of the Nigerian government and Shell.
43 Human Rights Watch Report (n 36 above).
44 As above. See also Civil Liberties Organisation Ogoni: Trials and travails (1996) 51.
⁴⁵ Cayford (n 36 above) 190.
46 Human Rights Watch Report (n 36 above).
47 As above. See also Civil Liberties Organisation (n 44 above) 19.
48 Human Rights Watch Report (n 36 above).
49 As above.
⁵⁰ As above.
51 As above.
52 As above. See also Civil Liberties Organisation (n 44 above) 64.
53 Human Rights Watch Report (n 36 above).
54 As above.
55 DL Orage 'The Ogoni question and the role of the international community in Nigeria' in AR Na'Allah (ed) Ogoni's agonies: Ken Saro-Wiwa and the crisis in Nigeria (1998) 41; W Boyd 'Death of a writer' in Na'Allah (above) 49 53.
56 Human Rights Watch Report (n 36 above).
57 As above.
58 As above.
59 As above.
60 Cayford (n 36 above) 192.
61 As above.
62 As above. See also I Okonta When citizens revolt: Nigerian elites, big oil and the Ogoni struggle for self-determination (2008) 233.
63 Human Rights Watch Report (n 36 above).
64 As above. For more analysis on the Ogoni trial, see AA Idowu 'Human rights, environmental degradation and oil Multinational companies in Nigeria: The Ogoniland episode' (1999) 17 Netherlands Quarterly of Human Rights 161 177-180; OC Oka-for 'International law, human rights, and the allegory of the Ogoni question' in EK Quashigah & OC Okafor (eds) Legitimate governance in Africa: International and domestic legal perspective (1999) 509. There was another separate trial of 19 other Ogoni activists. For unknown reasons, their trial never received wide media publicity like that of Saro-Wiwa and eight others. To understand in more detail the Ogonis' experience in Nigeria, and the environmental, political and legal dimensions of their struggle, see Okonta (n 62 above) 216-251; and CR Ezetah 'International law of self-determination and the Ogoni question: Mirroring Africa's post-colonial dilemmas' (1996-1997) 19 Loyola of Los Angeles International and Comparative Law journal 811.
65 CE Welch 'The Ogoni and self-determination: Increasing violence in Nigeria' (1995) 33 Journal of Modern African Studies 635.
66 Cayford (n 36 above) 196.
67 'Shell game in Nigeria' The New York Times 3 December 1995 http://www.nytimes.com/1995/12/03/opinion/shell-game-in-nigeria.html (accessed 18 March 2011).
68 As above.
69 As above.
70 As above. See also C Marecic 'How many wrongs does it take to make a human right?' (1997) 22 Vermont Law Review 201 228.
⁷¹ See, eg, 'Nigeria oil militants kidnap Scot' BBC News 6 April 2009 http://news.bbc.co.uk/2/hi/africa/7986202.stm (accessed 18 March 2011).
72 DV Kemedi 'Nero's folly' in E Kashi & M Watts (eds) Curse of the black gold: 50 years of oil in the Niger Delta (2008) 190.
⁷³ Human Rights Watch Report (n 36 above).
74 N Bassey 'The oil industry and human rights in the Niger Delta' written testimony before the United States Senate Judiciary Subcommittee on Human Rights and Law (28 September 2008) http://www.earthrights.org/files/Documents/Nnimotesti-mony9.24.08.pdf (accessed 18 March 2011).
75 A national environmental emergency situation that occurred in 1988 led to the promulgation of the Environmental Protection legislation. A vessel, MV Baruluk, from Italy, berthed at Koko Port in the then Bendel State (now Delta State) and discharged 561 imported containers of toxic waste product. See E Arubi 'N39 million relief for Koko toxic waste victims 21 years after' allAfrica.com 4 April 2008 http://allafrica.com/stories/200804041094.html (accessed 18 March 2011). See also SF Liu 'The Koko incident: Developing international norms for the Transboundary Movement of Hazardous Waste' (1992-1993) 8 Journal of Natural Resources and Environmental Law 121. In reaction to this incident, the Nigerian federal government promulgated the Harmful Waste (Special Criminal Provisions, etc) Decree 42 of 1988 (now Harmful Waste (Special Criminal Provisions) Act, ch H1, Law of the Federation of Nigeria, 2004) and the Federal Environmental Protection Agency Decree 58 of 1988 (now the Federal Environmental Protection Agency Act, ch F10, Laws of the Federation of Nigeria, 2004).
76 Ch F10, Laws of the Federation of Nigeria, 2004.
77 See JP Eaton 'The Nigerian tragedy, environmental regulation of transnational corporations, and the human right to a healthy environment' (1997) 15 Boston University International Law Journal 261 283- 285, where the provisions of this Act are discussed in more detail.
78 For some critical analysis of this legislation, see DK Derri & SE Abila 'A critical examination of the National Environmental Standards and Regulations Enforcement Agency (Establishment) Act, 2007' in Emiri & Deinduomo (n 34 above) 1.
79 These include the National Environmental Protection (Effluent Limitation) Regulations; the National Environmental Protection (Pollution Abatement in Industries and Facilities Generating Waste) Regulations; and the National Environmental Protection (Management of Solid and Hazardous Waste) Regulations.
80 See sec 27 of the Act.
81 Ch E12, Laws of the Federation of Nigeria, 2004.
82 Ch H1, Laws of the Federation of Nigeria, 2004.
83 See sec 60.
⁸⁴ See secs 6, 7 & 12 of the Act.
85 There is other legislation, both federal and state legislation, on environmental protection in Nigeria, but this will not be considered in this article in order not to digress from its main focus. Even the Nigerian Criminal Code (ch C38, Laws of the Federation of Nigeria, 2004) punishes for environmentally-related offences to the extent that it covers offences ranging from water fouling to the use of noxious substances. See particularly secs 245- 248 of this Code. For a more detailed analysis of criminal sanctions on environmental pollutions, see Idowu (n 64 above) 172-177.
86 Ch A25, Laws of the Federation of Nigeria, 2004.
87 This regulation is made pursuant to the provisions of the Associated Gas Re-Injection Act.
88 Eaton (n 77 above) 282. See also K Omeje 'Petrobusiness and security in the Niger Delta, Nigeria' (2006) 54 Current Sociology 477 494.
89 K Omeje 'Oil conflict in Nigeria: Contending issues and perspectives of the local Niger Delta people' (2005) 10 New Political Economy 321 327.
90 AK Akujobi 'The effectiveness of criminal sanctions under environmental law in Nigeria' in Emiri & Deinduomo (n 34 above 337 346), concluding that 'the penalties for infringement on environmental laws are laughable and grossly inadequate particularly when one thinks of the effect and consequences of the degradation of the environment and huge profits made by the polluters on their business'.
91 Eaton (n 77 above) 288.
⁹² Idemudia 'Rethinking the role' (n 24 above) 7.
93 What is implied here is that, instead of being exemplar of civility, regulatory compliance and adherence to industry best practices which they uphold in their home states, the TNCs in Nigeria chose to exhibit corporate malfeasance that apparently fits into the political atmosphere, even when it creates grave human rights havoc.
94 Eaton (n 77 above) 283.
⁹⁵ Idemudia 'Rethinking the role' (n 24 above) 9.
⁹⁶ See ch IV generally, but particularly secs 33, 34 and 43 of the Constitution of Federal Republic of Nigeria 1999 (1999 Constitution) relating to rights to life, dignity of the human person and the right to property. Besides making bold provisions for the first generation of human rights in ch IV, the Constitution in sec 20 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 for under this section (the right to a healthy environment derivable from the obligation of the state to protect and improve the environment) is not justiciable by reason of sec 6(6)(C) of the same Constitution, which purports to oust the court's jurisdiction from entertaining any question or matter arising from sec 20. The legal implication of this provision is that no one can successfully bring an action against the Nigerian government by relying on the said constitutional provisions. This perhaps explains why the people of the Niger Delta could not bring an action against the federal government in redress of their environmental damages.
97 Adopted by the United Nations General Assembly on 10 December 1948, UN GA Res 217A (III), UN GAOR, 3rd sess UN Doc A/810 (1948).
98 This is an African treaty adopted in Nairobi, Kenya, by the Organisation of African Unity (now African Union) Assembly of Heads of State and Government on 27 June 1981 OAU Doc CAB/LEG/67/3 Rev 5; C Heyns & M Killander (eds) Compendium of key human rights documents of the African Union (2010) 29, and came into force on 21 October 1986. It became part of Nigeria's domestic law by virtue of the African Charter on Human and Peoples' Rights (Ratification and Enforcement) Act, ch A9, Laws of the Federation of Nigeria, 2004). Art 22 of this Charter, eg, provides that all people shall have the right to economic, social and cultural development. Arts 4, 16 and 24 also make provisions relating to the right to a clean and healthy environment.
⁹⁹ See n 6 above.
¹⁰⁰ See n 5 above.
¹⁰¹ See arts 22 & 24. The rights to life and integrity of the human person, property, the enjoyment of the best attainable state of physical and mental health and the right to family life are also provided for in arts 4, 14, 16 and 18(1) respectively.
¹⁰² See art 12.
103 This is a quasi-judicial organ of the AU with the responsibility of monitoring, promoting and protecting human rights and collective peoples' rights throughout Africa as well as interpreting the African Charter and considering individual complaints of violations of the Charter.
104 (2001) AHRLR 60 (ACHPR 2001). This case was decided at the Commission's 30th ordinary session, held in Banjul, The Gambia, from 13 to 27 October 2001.
¹⁰⁵ SERAC decision (n 104 above) para 55.
¹⁰⁶ SERAC decision (n 104 above) para 52.
¹⁰⁷ SERAC decision (n 104 above) paras 56, 57 & 58.
¹⁰⁸ SERAC decision (n 104 above) para 55.
¹⁰⁹ SERAC decision (n 104 above) para 51.
¹¹⁰ SERAC decision (n 104 above) concluding para.
¹¹¹ Suit FHC/CS/B/153/2005 (unreported).
112 A full and detailed analysis of this case can be found in the Oxford Reports on International Law - ILDC 924 (NG 2005). The full text of the original judgment of the court is also available at http://www.climatelaw.org/cases/case-documents/nigeria/ni-shell-nov05-judgment.pdf (accessed 19 March 2011).
¹¹³ See S Ojeifo 'Gas flaring - Senate passes Prohibition Bill' This Day 3 July 2009 http://www.thisdayonline.com/nview.php?id=147722 (accessed 19 March 2011).
114 AC Cutler 'Critical reflections on the Westphalian assumptions of international law and organisations: A crisis of legitimacy' (2001) 27 Review of International Studies 133, arguing that the 'Westphalian-inspired notions of state-centricity, positivist international law, and "public" definitions of authority are incapable of capturing the significance of non-state actors, like transnational corporations and individuals, informal normative structures, and private, economic power in the global political economy'. See also Malanczuk (n 1 above) 1, arguing that 'only states could be subjects of international law, in the sense of enjoying international legal personality and being capable of possessing international rights and duties, including the rights to bring international claims'.
115 McCorquodale & Simons (n 18 above) 598 599.
¹¹⁶ I Fuks 'Sosa v Alvarez-Machain and the future of ACTA litigation: Examining bonded labour claims and corporate liability' (2006) 106 Columbia Law Review 112 117 n 37, arguing that developing countries are reluctant to bring TNCs under control because of their power over the flow of capital and jobs that the TNCs have and the ease with which either or both can be moved in relatively short period of time in the event of a country falling out of favour with the TNCs.
117 F Khan 'Understanding the spread of systemic corruption in the Third World' (2008) 6 American Review of Political Economy 16; O Fagbadebo 'Corruption, governance and political instability in Nigeria' (2007) 1 African Journal of Political Science and International Relations 28 35.
¹¹⁸ See J Ruggie 'Protect, respect and remedy: A framework for business and human Rights' (2008) 3 Innovations: Technology, Governance, Globalisation 189.
119 Kinley & Tadaki (n 3 above) 940.
120 Kinley & Tadaki (n 3 above) 942.
121 This statute is alternatively referred to as the Alien Tort Statute (ATS). It is part of the Judiciary Act of 1979, ch 20 para 9(b), 1 Stat 73, 77 (codified as amended at 28 USC para 1350 (2000)). See Fuks (n 116 above) 112.
122 Kinley & Tadaki (n 3 above) 939.
123 See Doe v Unocal Corp 963 F Supp 880 (CD Cal 1997) 110 F Supp 2d 1294 (CD Cal 2000); Doe 1 v Unocal 395 F 3d 932 (9th Cir 2002) 395 F 3d 978 (9th Cir 2003); John Doe 1 v Unocal 403 F 3d 708 (9th Cir 2005). Unocal Corporation was held liable for human rights violations of its subsidiary company in Myanmar. See also Beanal v Freeport-McMoran Inc 197 F 3d 161, 161 (5 Cir 1999). See generally Fuks (n 116 above) 118-119. For other cases, see MA Pagnattaro 'Enforcing international labour standards: The potential of the Alien Tort Claims Act' (2004) 37 Vanderbilt Journal of Transnational Law 203.
¹²⁴ S Joseph Corporations and transnational human rights litigation (2004) 83-99.
125 See nn 8, 9, 10, 13 & 14 above.
126 See n 14 above.
127 Kinley & Tadaki (n 3 above) 1021.
128 C Okoli 'Criminal liability of corporations in Nigeria: A current perspective (1994) 38 Journal of African Law 35; JA Dada 'The organic theory as a basis of corporate liability' (1998) 4 Current Jos Law Journal 219.
129 Ch I23, Laws of the Federation of Nigeria, 2004.
130 Ch C38, Laws of the Federation of Nigeria, 2004. See also Okoli (n 128 above) 39.
131 Ch C20, Laws of the Federation of Nigeria, 2004.
132 Okoli (n 128 above) 37-38.
133 Lennards Carrying Company v Asiatic Petroleum (1915) AC 705 713-714, per Viscount Haldane; Bolton v Graham (1956) 3 All ER 624 630, per Lord Denning; A-G (Eastern Region) v Amalgamated Press (1956-1957) 1ERLR 12; James v Mid-West Motors Limited (1978) NSCC 536 550, per Aniagolu JSC; Mandilas and Karaberis Limited & Another v Inspector-General of Police (1958) 3 FSC 20.
134 (1979) 3 UILR 490.
135 R v Zik Press Ltd (1947) 12 WACA 202.
136 Amalgamated Press case (n 133 above).
137 R v Attorneys for Anglo-Nigerian T in Mines Ltd (1926) 9NLR 69.
138 Mandilas and Karaberis Limited's case (n 133 above)
actions. And there seems in theory to be no obstacle in prosecuting them. The same is the case
¹³⁹ Board of Customs and Excise v Amaechi (1978) 4 FRCR 169. See also L Ali Corporate criminal liability in Nigeria (2009) 127.
140 (1992) 4 NWLR (Pt 234) 248 261, per Sulu-Gambari JCA.
141 n 140 above, 262-263.
142 DPP V Kent & Sussex Contractors Ltd (1944) KB 46; R v ICR Haulage Ltd (1944) KB 551.
¹⁴³ See n 133 above.
144 Okoli (n 128 above) 42-43.
145 While the prosecution of a government-owned corporation is tantamount to crown prosecuting crown, and as such difficult to conceptualise, the Nova Scotia Court of Appeal in R v Canada (Minister of Defence) (1993) 125 NSR (2d) 208 para 21 (NSCA) has clarified that as no one, including government and its departments, is above the law, it is entirely appropriate to prosecute government, especially where such prosecution is to punish an action that is particularly destructive to the environment (which is exactly the same case as in the Niger Delta). The Court explained this as follows: 'The respondents argued that the prosecution of Her Majesty in Right of Canada by Her Majesty in Right of Canada creates an absurdity. While there may be conceptual difficulties, these must yield to the principle that Her Majesty in Right of Canada or a Province is not above the law. When a statute that Parliament has made binding upon Her Majesty is violated in her name and on her behalf, the declarative effect of a finding of guilt is more important than the penalty imposed. This is particularly true when the statutory violation consists of an act destructive to the environment. Decoste J dealt with a similar argument in the Environment Canada case (Department of the Environment, Canada v Department of Public Works, Canada (1992) 10 CELR (NS) 135 (C.Q.)).' Indeed, prosecution of a government corporation is not a novel phenomenon in Canada. The Alberta Ministry of Justice and Attorney-General, eg, has a well-established procedure for doing this, which particularly involves a private counsel conducting the prosecution. This is available at http://justice.alberta.ca/programs_services/criminal_pros/crown_prosecutor/Pages/pros-ecuting_crown.aspx (accessed 20 March 2011).
146 Ali (n 139 above) 193-194.
¹⁴⁷ As above.
¹⁴⁸ See secs 174(b) & 211(1)(b) of the 1999 Constitution; sec 342 of the Criminal Procedure Act, ch C41, Laws of the Federation of Nigeria, 2004; Fawehinmi v Akilu (1987) 11/12 SCNJ 151 or (1987) 4 NWLR (Pt 797) 832; and Attorney-General of Anambra State v Nwobodo (1992) 7 NWLR (Pt 256) 711.
149 At the Review Conference of the Rome Statute concluded on 11 June 2010 in Kampala, Uganda, the Conference adopted a resolution by which it amended the Rome Statute so as to include a definition of the crime of aggression. But the actual exercise of jurisdiction over this offence by the ICC is subject to a decision to be taken after 1 January 2017 by the same majority of state parties, as required for the adoption of an amendment to the Statute. See International Criminal Court 'Review Conference of the Rome Statute Concluded in Kampala' http://www.icc-cpi.int/menus/icc/press%20and%20media/press%20releases/press%20releases%20%282010%29/review%20conference%20of%20the%20rome%20statute%20concludes%20in%20 kampala (accessed 20 March 2011). See, particularly, the text of the Assembly of States Parties (ASP) Resolution RC/Res 6 adopted at the 13th plenary meeting on 11 June 2010, http://www.icc-cpi.int/iccdocs/asp_docs/Resolutions/RC-Res.6-ENG.pdf (accessed 20 March 2011).
150 The treaty is also referred to as the International Criminal Court Statute or just the Rome Statute.
151 Arts 12 & 13.
152 Art 17. See, generally, I Cameron 'Jurisdiction and admissibility issues under the ICC Statute' in D McGoldrick et al (eds) The Permanent International Criminal Court: Legal and policy issues (2004) 65; International Criminal Court 'ICC at a glance' http://www.icc-cpi.int/menus/icc/about%20the%20court/icc%20at%20a%20glance/icc%20at%20a%20glance?lan=en-GB (accessed 20 March 2011).
153 MM El Zeidy The principle of complementarity in international criminal law: Origin, development and practice (2008) 157.
154 NN Jurdi 'Some lessons on complementarity for the International Criminal Court Review Conference' (2009) South African Year Book of International Law 28 29-30. See also NN Jurdi 'The prosecutorial interpretation of the complementarity principle: Does it really contribute to ending impunity on national level?' (2010) 10 International Criminal Law Review 73.
155 D Robinson 'The mysterious mysteriousness of complementarity' (2010) 21 Criminal Law Forum 67 68. For more discourse on complementarity, see MA Newton 'Complementarity: Domestic jurisdiction consistent with the Rome Statute of the International Criminal Court' (2001) 167 Military Law Review 20.
156 Robinson (n 155 above) 102.
¹⁵⁷ See the official website of the Coalition for the International Criminal Court, http://www.iccnow.org/?mod=country&iduct=128 (accessed 21 March 2011).
¹⁵⁸ AM Jimoh 'Senate ratifies International Criminal Court treaty' The Guardian 20 May 2005 http://groups.yahoo.com/group/Naija-news/message/3723 (accessed 21 March 2011).
¹⁵⁹ See n 157 above.
160 K Haigh 'Extending the International Criminal Court's jurisdiction to corporations: Overcoming complementarity concerns' (2008) 14 Australian Journal of Human Rights 199 200.
161 Quoted from Haigh (n 160 above) 202.
162 Haigh (n 160 above) 203.
163 As above. See also K Ambos 'General principles of criminal law in the Rome Statute' (1997) 10 Criminal Law Forum 1 7.
164 Haigh (n 160 above) 203.
165 J Kyriakakis 'Corporations and The International Criminal Court: The complementarity objection stripped bare' (2008) 19 Criminal Law Forum 115 118 142. See also Haigh (n 160 above) 205.
166 Adopted by the United Nations General Assembly in Resolution 54/109 of 9 December 1999.
167 Adopted by the United Nations General Assembly in Resolution 55/25 of 15 November 2000 and opened for signature at the High-Level Political Signing Conference held in Palermo, Italy, 12-15 December 2000. It is also referred to as the Palermo Convention.
168 Adopted by the United Nations General Assembly in Resolution 55/61 of 4 December 2000.
169 Haigh (n 160 above) 206.
170 As above.
171 As above.
172 As above.
¹⁷³ Haigh (n 160 above) 211.
174 This refers to the international conference in Rome at which the ICC Statute was deliberated.
175 Eg, the Nigeria's CAMA at secs 78 and 65 makes provisions relating to the service of processes on a corporation, and establishment of corporate intent respectively.
¹⁷⁶ A/Conf/183/WGGP/L5Rev2, 3 July 1998. But see A Clapham 'The question of jurisdiction under international criminal law over legal persons: Lessons from the Rome Conference on an International Criminal Court' in Kamminga & Zia-Zarifi (n 18 above) 139 150; C Chiomenti 'Corporations and the International Criminal Court' Global Working Paper 01/05, Symposium: Transnational Corporations and Human Rights, New York University Law School, New York http://www.law.nyu.edu/global/workingpapers/2005/ECM_DLV_015787 (accessed 21 March 2011).
177 Chiomenti (n 176 above) 6.
¹⁷⁸ See n 149 above.
179 The double standard of the industrialised Western world is the reason why these nations fail to use extraterritorially the same legal regime that they use at home to enforce corporate integrity among their TNCs. See J Clough 'Punishing the parent: Corporate criminal complicity in human rights abuses' (2007-2008) 33 Brook Journal of International Law 899. Australia may be taking the lead in attempting to punish corporations for criminal activities outside Australia when it introduced new provisions for prosecution of ICC offences within the Australian Commonwealth Criminal Code. See J Kyriakakis 'Australian prosecution of corporations for international crimes' (2007) Journal of International Criminal Justice 1.
¹⁸⁰ It may be interesting to highlight that a totally different approach to dealing with the transnational corporations' excesses in African host states has been suggested by E Oshionebo in his recent book Regulating transnational corporations in domestic and international regimes: An African case study (2009). He particularly advocates for what I may call 'social partnership'. His thesis as summarised is that '[o]verall, this book acknowledges the mutual interdependence of business and society put proceeds on the premise that the amelioration of ongoing abuses must be at once bilateral and cultural. That is, both TNCs and host African state governments must reject the status quo and work to forge a sustainable future for Africa. Respect for human and environmental rights must become core values in the African business arena and African states. A rejection of the status quo should start with the adoption of new attitudes geared towards positive outcomes. New attitudes might involve the pluralisation of regulation, in terms of mechanisms, strategies, and actors. Individual members of society, whether shareholders, investors, workers, consumers, communities, organisations, if organised and informed, have the capacity to influence corporate behaviour' (12).