3 Human rights and the multiple environmental changes

Paper presented as the 2012 Rafto Prize Laureate at Rafto Conference, Bergen, Norway, 3 November 2012

A close look at the state of planet earth today shows a bleak picture and demands that humankind makes radical choices as to whether to further darken the future or to light some lamps and offer rays of hope.

The world is gripped in the embrace of multiple crises including those of climate, energy, food, water, finance and economy. These are all intensified by the reign of speculation on a path of unending growth based on the unspoken supposition that planetary space and resources are elastic and inexhaustible. This vision of the world is built on the premise of profit before people and on the creed that nature must be commodified in order to have value and stand a chance of being protected and defended. A creed aptly captured in the so-called ‘Green Economy’ concept in which everything carries a monetary price tag.

We are seeing a situation where market mechanisms are advertised as saviours of the world and the propping up of failing markets, corporations and financial institutions is set as the topmost job for politicians and policy makers. Still failing and failed markets, failed corporations and business moguls litter the world, literally. The burden of the failures and reckless exploitation falls on the shoulders of the impoverished and the oppressed who swell the ranks of the jobless, the homeless and the hungry.

The food crisis refuses to go away because food prices are driven by speculation. With the help of a few global food manufacturers the poor get fed plastic or junk foods and forests get cut down to raise cattle to meet unending demands for meat. Crops are grown for machines and lands are being grabbed under the guise of investment.

Starting from the erection of market mechanisms at Kyoto as the key way to tackle climate change, the stage was set for foisting false solutions through schemes like the very upsetting carbon offsetting and carbon trading ones. In order to build up the carbon market, trading systems have been created, but the price of hot air (carbon) has simply refused to fly. Biological carbon sequestration continues to capture the imagination of governments and traders, as does the pursuit of the yet to materialise mechanical carbon capture and storage. Seeing trees as nothing but carbon stocks and plantations as forests raise deforestation to new heights.

For a time there were arguments that agro-fuels could replace fossil fuels and would be good for the climate. The idea of ramping up agro-fuels/biofuels was principally a way to sustain the fossil fuel infrastructure since the production and utilisation paradigm are essentially the same. In other words, biofuels help keep fossil fuels civilisation on life support. Sadly for proponents, biofuel is not the energy solution. Indeed biofuels have since been seen to be a pipe-dream, although not before the notion set in motion an inexorable scramble for lands in the global south that has been aptly described as the great land grab. It is no longer news that the world has reached peak fish, peak oil and peak water. These are all signs of deep environmental changes, of more crises to come and of more human rights abuses as the Darwinian struggle for diminishing resources intensifies.

The series of changes driven by the multiple crises present a clear picture of environmental change. This concept recognises the fact that the environment is impacted by physical, economic, socio-political and other changes. We already know how closely tied the economic and political spheres are and how they collude to ensure that the environment and the people are exploited without redress or responsibility. The massacre of miners at Lonmin, South Africa highlights the extreme case of disposability of labour. Another manifestation of this situation is found in the sweatshops of Asia and elsewhere where workers are treated worse than pieces of machinery and are driven relentlessly by taskmasters. In this situation, the poor do not matter either because they do not have enough disposable income to make them desired players in the markets.

Desperate extraction

Fossil fuels have driven current modes of civilisation for over one and a half centuries. Coal, crude oil and gas enabled the world to shift from humans and animals as energy generators to machines that opened the highway to endless consumption. Crude oil appears cheap because the real costs are externalised. Today, with the days of easy oil ending, we are seeing a push into extraction in deep waters and fragile ecosystems. Some of the fragile ecosystems already being drilled include those in the Rift Valley of East Africa where oil and gas are being exploited in pristine environments and nature reserves. Other areas that are being sought after by the extractive sector and partner politicians include the Arctic region (where melting glaciers are seen as an opportunity and not an alarm), Yasuni ITT in Ecuador and offshore Lofoten in Norway. These and similar should be clearly off limits to polluting activities.

The end of easy oil is equally driving the increased adventures into fracking and deadly extraction of tar sands in Canada and elsewhere. While fracking is increasing domestic supply of oil and gas in the USA, tar sands increase fossil fuel exports from Canada; they are equally bringing up higher levels of environmental degradation with attendant health impacts that clearly impinge on human rights of citizens.

At this juncture, it is evident that humanity needs to get off the fossil fuels anaesthesia to be able to see that the extractive logic is simply not the way to keep a development path that has gone bankrupt. Consumption and endless growth present the dilemma of systemic greed overtaking inherent human greed and desire for accumulation of resources. Endless growth does not recognise that nature has boundaries and requires huge spans of time to replenish depleted resources. The intrinsic immorality and inequities in this situation seek ways of staying alive through the privatisation of conscience via media, particularly through electronic advertisements. All these actions are relentlessly pursued to appease or assuage corporate schizophrenia. It is time for rapid investment in truly renewable energy.

I have a dream. I have the dream that one day, offshore oil platforms and floating stations will become wind and solar farms. I have a dream.

The impunity of oil spills

Coming from a country where there is an equivalent of one Exxon Valdez volume of crude oil spewed into our environment yearly, it is inescapably clear that the petroleum industry is a very polluting sector. According to Senator Saraki, chair of Nigerian Senate’s committee on environment, ‘Oil spillage is not an oil business it is an environmental problem. Oil spill is an irresponsible environmental behaviour. The fact that it is as a result of oil exploration does not detract from the impact on the environment. Nigeria has lost over 13 million barrels of oil to preventable spills.’ Senator Saraki added,

It has been acknowledged by several reports including the UNEP Report that fifty per cent (50 percent) of oil spills in Nigeria has been due to corrosion of oil infrastructure, twenty eight per cent (28 percent) to sabotage and twenty one per cent (21 percent) to oil production operations. One per cent (1 percent) of oil spills is due to engineering drills, inability to effectively control oil wells, failure of machines, and inadequate care in loading and unloading oil vessels. It is the responsibility of the spiller to rehabilitate oil spill sites. It is as simple as that. The number of identified sites is over 2,000. The majority of these sites are sites with identified spillers. This gives an indication of the problem we already have in our hands.

It is obvious that there cannot be this level of ecological impunity without human rights being consistently trampled on. One quote from a Shell general manager in Nigeria in 1995 underscores the fact that impunity is good for some business: ‘For a commercial company trying to make investments, you need a stable environment…Dictatorships can give you that.’ This statement was made in early 1995 and by November Ken Saro-Wiwa and eight other Ogoni compatriots were hung by the dictatorship in power in Nigeria at that time.

Earlier in 1990, when the community of Umuechem protested against Shell’s oil operations, Shell sent an urgent request for government security protection, requesting the ‘Mobile Police’ – units well-known for their brutality. The result was a two-day wave of violence that left 80 people were dead and nearly 500 houses destroyed.

Umuechem heralded a reign of terror that was visited upon the Ogoni people when, a few years later, they rose up in protest against oil operations that had resulted in minuscule local benefits but tremendous environmental costs. Again Shell relied on Nigerian security forces to secure its operations. Hundreds of Ogonis were arrested, tortured, and killed.

Efforts to obtain justice have taken impacted Nigerians to courts in Europe and USA. There is the case of four farmers and fishermen suing Shell in The Netherlands over pollution in Nigeria. Judgement is expected on 30 January 2013 in that case.

In 2002, a group of Nigerian plaintiffs brought suit under the ATS in a US federal court against a Shell’s parent company, Royal Dutch Petroleum, for assisting in extrajudicial killings, torture, and crimes against humanity against the Ogoni people. These plaintiffs were living in the United States because they had received asylum from the US government due to their persecution in Nigeria. On February 28, 2012, the case, Kiobel v. Royal Dutch Petroleum (Shell), was argued before the US Supreme Court. Since then, the Supreme Court has ordered a second round of arguments, which took take place on 1 October 2012. This case is currently before the US Supreme Court with Shell launching a critical attack on human rights protections before the court by trying to gut a 200-year-old American law called the Alien Tort Statute (ATS). This law was originally used to bring cases against pirates but has developed into a way to bring suit against individuals and corporations that commit the worst types of human rights abuses like genocide, torture, and crimes against humanity.[1]

The following information from the website of Center for Constitutional Rights (CCR), the organization that supported the Kiobel case reveals the idea behind the case and how it all evolved:

This lawsuit was brought under the Alien Tort Statute[2] and is a companion case to three lawsuits brought by CCR in 1996 against Royal Dutch Petroleum Company (Shell) for its complicity in human rights abuses against the Ogoni people in Nigeria.[3] After the Second Circuit Court of Appeals decided in 2000 that the court had personal jurisdiction over the Shell parent companies in CCR’s case Wiwa et al v. Royal Dutch Petroleum, the Wiwa and Kiobel cases were consolidated for discovery, but because the cases had different procedural postures,Kiobel was appealed to the Second Circuit while Wiwa was set for trial.  The Wiwa cases were settled on the eve of trial in 2009, providing a total of $15.5 million to compensate our clients, establish a trust for the benefit of the Ogoni people, and cover some of the legal costs and fees associated with the case. The Kiobel case, on the other hand, ended up heading to the Supreme Court on the question of whether corporations can be held accountable for human rights abuses and whether U.S. federal courts can hear claims arising from human rights violations committed abroad under the ATS.

For decades, CCR has pioneered the Alien Tort Statute as a tool to pursue international human rights violations in U.S. courts. Thus, we actively supported the plaintiffs in Kiobel as their case headed to the Supreme Court on questions regarding the ATS. CCR and allies filed numerous amicus briefs insupport of the Kiobel case against Shell, three of which were filed in the Supreme Court. In a 2007 amicus brief, filed on behalf of the Wiwa plaintiffs, CCR argued that extra-judicial killing is an actionable norm under the ATS.

On April 17, 2013, the Supreme Court issued its decision in the case, ruling that the Alien Tort Statute could not be applied to Shell’s actions in Nigeria. The Court’s decision undercut 30 years of jurisprudence to limit U.S. courts’ ability to hear cases on human rights violations committed outside the U.S, limiting the ATS to those cases that “touch and concern” the U.S. with “sufficient force.”  CCR has continued to develop ATS jurisprudence in other cases post-Kiobel. We remain fully committed to continue challenging corporate human rights abuses and abuses by individual torturers and war criminals, no matter where they are committed.

The oil company’s arguments were interesting: They argue that US law should not allow holding companies responsible for committing the most severe atrocities. They also claim that domestic US courts have no business in holding multinational corporations responsible for human rights abuses, especially those that happen in other countries. But as a 2007 UN report confirms, numerous countries recognise corporate legal responsibility for violations of international law.

If the Supreme Court does what Shell’s asking it to do — grant immunity for human rights abuses committed overseas — this would allow mega-corporations to operate by a different set of rules around the world and would turn the clock back more than 200 years.

The rain that beats us all

The impacts of global warming are clear and some of these include: intensified desertification, changed rainfall patterns leading to unusual floods, sea level rise and increased coastal erosion. These directly impact fragile infrastructure as well as the capacity of vulnerable peoples to reap expected fruits of their labour in the area of agriculture due to both loss of arable lands and the increasing salinity of coastal water bodies.

The fundamental causes of climate change are well known and documented. The basic drivers are anthropogenic actions, especially the use of fossil fuels for energy production resulting in the release of huge quantities of greenhouse gases into the atmosphere. It is important that we note the fact that while the bulk of the polluting activities have occurred and continue to occur in rich industrialised world, the impacts are mostly felt in nations and regions contributing least to the problem. We note that 50 per cent of the carbon in the atmosphere has come from just the USA and the European countries whose populations add up to only10 per cent of the world’s population.

Stressing the fact of fossil fuels being the fundamental culprit in this crisis, Oilwatch International regrets that petro-independence is being strengthened by the day.

Overall energy consumption grew by 5.6 percent in 2010, with continued dependence on fossil fuels (coal, gas and oil). This was the highest rate of growth since 1973 and energy consumption is growing in every region of the world, and particularly in China.

Petro-dependence is maintained through private sector and state strategies that include both direct violence and the indirect violence of advertising bombardment, greenwashing and political corruption. In spite of local opposition, environmental impacts and economic illegalities, and in spite of the general crisis to which it is linked, this strategy is maintained and even imposed as a priority.

Small island nations and other vulnerable nations in Africa, Asia and Latin America are in the frontlines of areas that are most threatened by climate impacts. Sadly, these nations are forced to focus their energies on planning and taking actions to adapt to the changing scenarios foisted on them. They are also forced to seek ways of mitigating the impacts of climate change.

Systemic challenges, systemic solutions

The United Nations Framework Convention on Climate Change (UNFCCC) was set up to provide guideposts and to urge nations to act together in everyone’s common interest: for the survival of the planet as we know it. The conferences of parties (COP) to the convention have quickly turned into talk shops for nations to display their power, arm-twist the poor and evade action. This became most obvious at COP15 in Copenhagen and became entrenched at COP16 in Cancún. What happened at COP17 in Durban must take the medal as a conference whose critical achievement was the blatant postponement of action while the earth burns.

Climate justice activists saw the Durban debacle as one where ordinary people were unabashedly let down by governments. There are no reasons why we should be optimistic about the outcome of the next Conference of Parties that will be held in Qatar.

The demand of climate justice is that those who created the climate problem must be the ones to mitigate it. There are two ways to go about it. First, rich nations must reduce their rapacious consumption patterns and address the climate crisis with real solutions and not ones that have been seen to be false. Second, the rich nations have to support the poor nations who are being forced to adapt to a situation they did not create. One way of practically making that to happen is through the support for sustainable low-carbon development paths.

At the close of the Durban meeting the descent into non-binding pledge-and-review system was set. This system of inaction places the world on the way to warming by as much as 4 to 7 degrees Celsius above preindustrial levels. If that happens, Africa will be cooked because the continent experiences 50 per cent more than average global temperature levels. The reluctance of rich and highly polluting nations to take real action on climate change has rightly been described as a form of apartheid. This is apartheid against Mother Earth and the species that she bears.

Love in Kyoto

It is worth recollecting at this juncture that the key point of the Kyoto Protocol is that it has legally binding emissions reduction requirements for industrialised or Annex 1 countries. In reality the protocol set very minimal targets for reduction of carbon emissions that were to be achieved between 1990 and 2012. Major emitters such as the USA and Australia did not accept these targets. The UNFCCC and other analysts have shown that even if the targets set by Kyoto were met, the climate crisis would not have been sufficiently tackled.

One of the key failures of the Kyoto protocol is that it did not unambiguously pin the blame for the problem on hydrocarbons. As long as this was the case, the frameworks for handling the problem were fundamentally flawed. Conventional wisdom instructs us to tackle the root causes of problems rather than the symptoms if we wish to radically pursue long lasting solutions.

Weak as it was, the Kyoto Protocol itself was not adopted easily and this delay was largely due to the withdrawal of the USA, the global giant in carbon emission, in 2001. It is important to note that before the USA withdrew they had effectively influenced the language of the protocol and firmly planted the bent to carbon mercantilism or ‘free market’ environmentalism. In fact they got the world to accept the market language and concept at the 1997 Kyoto meeting in exchange for USA support that never materialised. The world is still stuck with the mindset of these untested ideas to this day. The protocol was set on a market ideology and this has blocked the pathway to real and just solutions to climate change.

We note here that although the USA has a mere five percent of the world’s population it emits nearly 25 percent of the world’s greenhouse gases from the burning of oil, gas, and coal – for driving cars, producing electricity, and running industries. With so much carbon burden, it can be seen that the country would not readily want to accede to emission caps that would help keep the earth’s temperature from rising to or above 2 degrees C over pre-industrial levels. Already the earth has warmed by almost 0.80 degrees C since the industrial revolution. The Intergovernmental Panel on Climate Change (IPCC) in its 4th report estimated that to keep temperature rise to 2.0-2.4 degrees C, greenhouse gas emissions must be cut by 50 to 85 per cent relative to 2000 levels by the year 2050. If nothing is done to check the rise in temperature, up to 30  per cent of plant and animal species would be under threat of extinction.

Carbon markets and other mechanisms

The Clean Development Mechanism (CDM) can sometimes be applied to ridiculous extremes. We take for example the marketing of gas flare stopping projects as CDM projects. Through such projects, oil corporations and the Nigerian government hope to claim carbon credits for helping fight climate change. The reality is that gas flaring has been an illegal activity in Nigeria since 1984 when the Nigeria law on Gas Reinjection came into effect. Any reduction or stoppage of flaring is simply a reduction or halting of a criminal activity and brings on no additionality, as the CDM process requires. Any compensation for such an activity flies in the face of reason. Gas flares are the most cynical manifestations of corporate insolence in the face of climate change and environmental health. The flares release greenhouse gases such as carbon dioxide, methane and nitrous and sulphur oxides. Apart from these, the flares release other harmful substances that greatly affect human health.[4]

Environmental Rights Action (ERA), after reviewing the projects for which the oil companies seek carbon credits, concluded that the CDM projects being pursued by the oil companies would only create perverse incentives for the continuation of the obnoxious act of gas flaring. The group noted that in its 2010 Sustainability Report, Shell recorded a 30 per cent increase in gas flaring from their operations in Nigeria compared to their figures in 2009. This happened despite Shell’s gas gathering projects and a CDM project at Afam that they commissioned in 2009.

Furthermore, the projects create the need for new oil wells to be exploited to supply gas to the CDM facilities. ERA noted that all of the registered CDM projects have at least a 10 to 21 year contractual tenure in the first instance to either supply gas or generate electricity. The implication is that these CDM projects constrain the ability of government to make laws or implement laws made for the good governance of the country within this contractual period.

ERA’s analysts also see the CDM projects as allowing the Nigerian government and its policy makers to “honestly believe” or to hide behind the illusion that carbon emission can continue since the same amount of pollution can be offset by fossil fuel projects such as those at Afam, Kwale, Oben and Ovade CDM project, or via a carbon sink that would absorb the pollution in future, or as long as they could get some more foreign exchange from them.

Beginning from the market mechanism known as the Clean Development Mechanism (CDM) we are now seeing offspring such as the Reducing Emissions from Deforestation and Forest Degradation (REDD). A number of other mechanisms fall in between, dealing with one carbon off setting mechanism or the other. These market mechanisms provide the basis for private sector investment in projects that appear to have positive possibility of tackling climate change.

The European Union pushed through an empty Green Climate Fund with no money to help countries least responsible for climate change adapt and pursue low-carbon development. The package, however, ensures the possibility that multinational corporations and international financial actors would be able to access any funds that might eventually materialise.

Agrofuels and landgrabs

The phenomenon of land grabbing has risen most as a result of the wrong approach to tackling global warming. While climate change has induced food deficits on account of unusual weather events, the thinking that agrofuels can replace fossil fuels has driven investors to grab lands in the tropics for the cultivation of fuel crops such as sugar cane, jatropha and the like. Up to 200 million hectares of land have been grabbed in this way globally.

It is clear that this phenomenon will not help but worsen the food crisis, land conflicts, the displacement of labour and the poor.

Land grabs create strife and also weaken capacities to mitigate or adapt to the impacts of climate change. Consider cases where top political leaders are directly involved in land allocations or act as middlemen in such transactions. An example is the land crisis that has dogged Uganda. In 2007 there was a massive crisis over plans to convert Mambira forest into a sugarcane plantation. Mid 2012 another land crisis and mass evictions rocked the country with the government threatening to deregister Oxfam and the ULA. Reports have it that Oxfam has had brushes with the government when they insisted that programmes should support the way of life of the people rather than pushing them into patterns that they are ill-equipped to deal with.

Templates for action

Official negotiations have locked in action until possibly 2020. By that time the world may already be in the throes of runaway climate change. Hope is not lost, however. Long before the Arab Spring and the Occupy movement (manifested in many parts of the world and still going on at the time of publication of this book) showed that the regaining of peoples sovereignty over political structures is possible, there was an epochal World People’s Conference on Climate Change in Cochabamba, Bolivia, in April 2010.

The Cochabamba conference produced the People’s Agreement as a key outcome. It demanded that countries cut their emissions by at least 50 per cent at source without resorting to carbon offsets and other trading schemes. In terms of financing adaptation and mitigation, the Agreement required that developed countries commit six per cent of their GDP for these needs. These plus a reduction in military budgets and committing the savings towards tackling global warming would provide sufficient funds for the so-called Green Climate Fund.

The peoples of the world equally highlighted the necessity of recognising and paying the huge climate debt piled up by the rich polluting nations. Besides making funds available, it will be a step in the direction of decolonizing or democratising the atmosphere of which developed countries have already taken up 80 per cent of the carbon space.

In order to work to restore the natural cycles of Mother Earth, the Agreement demanded the Universal Declaration of the Rights of Mother Earth. This is already being promoted in the UN systems.

Mother Earth or barbarism

Explaining the concept of Mother Earth, Alvaro Garcia Linera, the Vice President of Bolivia, said, The concept of Mother Earth ‘is not just a slogan. It means a new way of producing, a new way of relationship with nature and with one another. This relationship is one of equality and not domination, a relationship of dialogue, of giving and receiving. It is not merely a philosophy or folklore’. It is a new ethics, a new way of developing technologies and modes of production. Recalling a statement by Rosa Luxemburg, ssocialism or barbarism’, Vice President Linera said that today we could say ‘Mother Earth or barbarism.’ Affirming that capitalism was the root cause of climate change and many of the ills of the world today, Linera said that the system permits oil companies and the military complex to commit genocide, destroy the environment and reap ever-rising profits at the expense of the blood of the people.

Reinventing governance

We cannot wish away the rapid environmental changes occurring today. There is an urgent call for actions in line with the realisation that planet earth is populated by interdependent beings and cycles. Massive contaminations have already hit as we have already noted. While we cannot exhaust the long list of fronts where the assaults are intensifying, we must mention that critical concerns continue to rise in area of genetic contamination, geo-engineering as well as synthetic biology and the related bio-economy.

It is time for a global rejection of current energy consumption where environmental costs and social liabilities are externalised and rather invest in and build the eco-logic model where ecology, sovereignty and good living define relationships of production and consumption. We need to rebuild our collective environmental and social consciousness, moving away from a system that destroys society and nature through the destruction of knowledge and positive productive forces. We need a system with conscience.

In sum, the struggle is about who defines your narrative of life and living. Who knows best where the shoe pinches – the shoemaker, shoe seller or the person wearing the shoe? Global solidarity is needed and the peoples must regain leadership in this. After decades of inaction to address the pains of the people, leaders now have to be led by the people. Governance structures require reinventing. Inaction simply gives the space for the environmental changes to consolidate as humankind’s hangmen.

  1. The US Supreme Court eventually heard two rounds of arguments on the case on 28 February and 1 October 2012. The court’s decision delivered on 17 April 2013 dismissed the case and affirmed the lower court’s earlier decision. 
  2. See http://www.ccrjustice.org/sites/default/files/assets/files/ATS%20factsheet%209.2012.pdf
  3. See Wiwa et al v. Royal Dutch Petroleum et al. at http://ccrjustice.org/home/what-we-do/our-cases/wiwa-et-al-v-royal-dutch-petroleum-et-al  for more information
  4. http://nnimmo.blogspot.com/2012/11/human-rights-and-multiple-environmental.html (accessed 7 June 2016)


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