Addressing Human Rights Violations by Extractive Business in Nigeria: The Limitations of Transnational Mechanisms and International Recourses as Alternatives
摘要
This chapter argues that current responses to human rights violations by businesses, including those that undermine sustainability and damage the environment, have significant shortcomings that frustrate claims for redress by communities impacted by business misconduct. We argue that effective remedies and enforcement mechanisms should challenge the assumptions of current corporate governance models by placing communities at the centre of processes to ensure corporate compliance with human rights obligations and that communities should be the drivers of remedy processes. Processes should be based on international standards, be forward-looking (as well as remedial), be flexible (while including incentives for business participation) holistic, and encourage collaboration among those affected. In this chapter, we examine various recourses attempted by individuals and communities, and Non-Governmental Organisations claiming human rights violations by energy companies in the Niger Delta. Recourses pursued include transnational and international claims. We examine the ‘Kiobel’ litigation in the American and Dutch courts as extraterritorial transnational claims and identify procedural and structural hurdles that led to the ultimate abandonment of the claims. In the context of international claims, we look at the claims against Nigeria primarily before the African Commission on Human and Peoples’ Rights concerning rights violations in the oil exploitation in the Niger Delta. We also examine broader work by the Commission, including by its Working Group on Extractive Industries, Environment, and Human Rights, to improve monitoring of and compliance with human rights for communities in resource-rich areas. Our review of international law processes includes claims against extractive industry businesses through the specific instance procedure under the Organization for Economic Cooperation and Development Guidelines for Multinational Enterprises. Finally, we identify how existing recourses deviate from our identified principles and suggest ways to improve them, while recognising the structural barriers to the full achievement of our principles of effective recourse.