Appraisal of Corporate Environmental Responsibility Practices in Nigeria

ABSTRACT

Globalization has transformed, and to a remarkable degree been driven by, the growing role and operations of multi-national corporations and national industries at national and international scale. Thus, the fusion of international and domestic economic orders, and the subjection of their operations to certain standards and principles in respect of sustainable development – following the rapid change in institutional factors allied to the progressive process of globalization has now obliged companies and their associates to accountability, especially in matters of environment and human rights – the twin vistas of sustainable development. It is now obvious that a transformed governance of environmental value system, such as globalization of environmental law, requires compliance to legal principles and rules of sustainable development embedded in an environmental value system. Therefore, this work examines the nature, viability and operations of Corporate Responsibility (CR) within environmental protection. After elucidating on the concept of environmental protection and law, it treats the legal literature, and jurisprudence of environmental protection and Corporate Environmental Responsibility (CER).

The ideas and legalism of obligation and liability, and the practice of Corporate Environmental Responsibility in terms of pollution of environment are largely resulting in environmental crisis in Nigeria. The study adopts the descriptive, analytical, explanatory and comparative study design in reviewing the CER principles and practices in other jurisdictions. Reliance was placed on primary source materials such as legislative Acts and other legal instruments of both international and national laws. Also, secondary source materials relied on will include case law, textbooks and other legal research and academic materials such as journals, magazines, Internet sources, law reports, unpublished cases, DVDs, etc. It outlines the pitfalls, characterization and issues of corporate environmental responsibility as they affect environmental protection and development, including human rights and socio-economic progress. This work draws attention to the incidence of corporate responsibility and human rights problems in Nigeria’s oil producing areas known as the Niger -Delta, and the generic experience in other parts of the country. It has investigated the limit of law in the dimension of Corporate Responsibility towards the environment and assesses the legal regime and practice in Nigeria. The study recommends that legislations meant to regulate CER practices by MNCs especially with legal means and methods of improvement as well as domestic firms need a total and complete overhaul and that government and environmental protection agencies will do well by creating general awareness on the need to be socially responsible to the environment and the dangers of acting otherwise.

The study concludes on the need to promote CER values bearing in mind that the success of compliance with it will largely be determined by a positive attitudinal change of firms and the government to societal needs and sustainable developments above the orthodox position of maximum profit-making and economic interests/benefits to the detriment of the society.

CHAPTER ONE

GENERAL INTRODUCTION

1.1. Background to the Study

This study is an analysis of the concept of corporate environmental responsibility, its laws and a critical examination of its practice level in Nigeria, showing that government and corporations may no longer plead it as a mere voluntary self-regulatory venture and consideration on international legal norms of a near soft law. The importance of corporate environmental responsibility in any legal and social system cannot be overemphasized. It is indeed, one of the lessons of globalization and the new international economic order, now metamorphosing into a legal order with increasing awareness that the enforcement and achievement of human rights require legal mechanism for responsibility and liability of corporations, as well as states and individuals. This is undeniably, a cornerstone in the realization of sustainable development, nationally and internationally. The importance of such a legal system lies not only in the protection of civil liberties and prosecution of criminals but also in using responsibility regime as a means of promoting and advancing fair, just and efficient relationship between communities and corporations, for the sustainability of environment and guarantee of human rights and development for the citizenry.

International minimum standards have emerged, and have set the benchmark for the domestic enforcement of human rights. Judicially and theoretically, these standards include the duty of care and the liability for breach of states and corporations in the dimension of environmental protection. As it develops, international environmental law raises main issues already contained in international human rights law. In environmental protection, questions related to the existence and application of liability and responsibility law and the expected role of individuals, to the state and corporations in the legal process have raised analogous issues to those within the realm of international human rights law. These issues are closely related, overlapping and interoperable in the developing activities of environmental legal systems. However, the development of international human rights law predated environmental law and all the elements that flow from it, such as corporate responsibility and liability doctrine. It has been affirmed that human rights law provides a rich source of experience for the understanding and applicability of environmental law from which the doctrine of corporate responsibility sprang.

Therefore, the issues of the responsibility or liabilities of corporations for environmental damages or activities negatively affecting the environment, the question of proceedings that may be instituted and undertaken are herein raised. This approach is explored further, illustrating that another emerging legal principle, very widely accepted even as novel as it is, in some countries, is the notion of Corporate Environmental Responsibility.

1.1.1. Conceptual Definition of Environment

The concept of environment is as old as nature itself. It is a composite term referring to condition in which organisms live, and it is the living source of life . Environment has been defined by several scholars, authors, as well as statutory and case laws . In the analysis made by Swamy, environment as a composite term refers to conditions in which organisms consisting of air, water, food, sunlight, etc; thrive and become living sources of life for all the living and non-living beings including plant life. The term also includes atmospheric temperature, wind and its velocity. It has been seen as both conditions and surroundings, and thus referred to mean the circumstances that surrounds one; the totality of circumstances surrounding an organization or group of organisms especially the combination of external physical conditions that affect and influence growth, development and survival of organisms, as well as the complex of social and cultural conditions affecting the nature of an individual or community. Osibanjo sees it as man’s immediate surroundings (that is water, air, land including associated living and non-living resources) which provides support system for mankind. According to Edward Ekpo and Wali, while admonishing that any attempt to conceive a universal definition of environmental law without understanding first, the meaning of “environment” and “law” would render such approach not only difficult but vacillating, in making reference to Thornton and Beckwith’s writing, they criticized Albert Einstein, the greatest physicist of the century for limiting the expansive nature of environment in his statement thus: “environment is everything that isn’t me”.

According to them, Einstein did aim at telling the world that there is hardly any structure which is not part of the environment, and hardly any activity that does not have environmental impact. It is submitted that even as Einstein however talked about the complex nature of environment, he was slightly wrong when he excluded himself as part of environment. This is because man is an essential part of the, or sub-media of environment. Man lives, breeds, exploits and breathes the whole of the environment. Thus, added that environmental law operates principally for man, so the phrase ‘that isn’t me’ made by Einstein, was an overstatement (sic). The temporary and spatial dimensions of environmental law have now established and sustained the notion of anthropogenic concept of right and responsibility, thus depicting that man is the central factor in the destruction as well as the protection of sustainable development.

According to the United States Council on Environmental Quality, “Environment” means man’s total environmental system including not only the biosphere, but also his interactions with his natural and man-made surroundings. Under the Nigerian statutory law, “Environment” is defined by Section 37 of the National Environmental Standards and Regulatory Enforcement Agency Act. In the Act, environment consists of all or any of the following media, namely, air, water and land. The most comprehensive definition of environment is in the New Zealand Resources Management Act (1991) thus, environment is defined as:

(a) Ecosystems and their constituent parts, including people and communities; (b) all natural and physical resources; (c) amenity values; and socio-economic, aesthetic and cultural conditions which affects the matters in paragraphs (a), (b) and (c), or which are affected by them.

Professor Alexandre Kiss on his part has corroborated to the above copious quotation. Kiss emphasizes that environmental law is concerned with our “natural” and our “cultural heritage. The natural heritage includes the atmosphere, the oceans, plants and animals, water, soils and other natural resources, both renewable and exhaustible. Our cultural heritage includes the intellectual, artistic, social, and historical record of mankind. Natural heritage is linked with cultural heritage, the survival, protection and progress of being interdependent. Man is the bridge between the two. Accordingly, environment comprises the features and natural systems products of both the natural world and those at human civilization. To us, the above definition and analysis is a comprehensive and truest understanding of the concept of environment – what environment is and what it represents. Gaining from both the pedagogical and legal point of view, we must join to see environment as a total or wholesome structure made up of the ecological and aesthetic conditions and which man stands as the central influencer and affecter. This level of concept understanding is of greater relevance to the readers of this work.

1.2. Statement of Problem

Implementation of corporate responsibility on the environment presents greater regulatory and applicability problems to both the international and national legal systems. Although basic rules of international and municipal laws provide that corporations, just like states, have responsibility towards the environment, it has however, been subject to a process of reinterpretation in the field of human rights and the environment. Indeed, two approaches stand as drawback to the best practice of corporate environmental responsibility. It is of course obvious that government and companies, including individuals, accept the relevance of corporate responsibility and view it as a universally acceptable standard. First, even though CER is a universally acceptable approach, going by the classical understanding of the notion of corporate social responsibility, it is mistakenly, viewed as practice of voluntary basis. Secondly, there is virtually limited literature to an extent that knowledge assimilation of the CER context results in ineffectiveness or passive-ineffectiveness to the best practice of CER.

Undoubtedly, there is now much aspirations and eulogies of companies on their practice of corporate social responsibility even in the specific dimension of environmental protection. Unfortunately the citizens and academicians awareness on the assessment of the practical value and legality of such companies’ acclaimed practice is too low let alone the means for making the laws in this area enforceable. This scenario is antithetical not only to civil rights of a service dimension, but also to the treatment of environmental rights toward achievement of sustainable development which is the prime purpose of environmental law. Yet, the citizens’ awareness and their human rights that flow from CER ought to be of paramount importance.

1.3. Aim and Objectives of Study

Considering limited literature in this area of knowledge and ignorance of the legal framework in Nigeria, the choice of this topic was motivated by the need to contribute in some way, to the development and evaluation of environmental law, particularly in the dimension of the seeming soft laws of corporate responsibility in Nigeria through the assessment of the extant practices and a possible development of a solid and advanced legal practice.

Therefore, the aim of this study is to achieve the objectives of appraising the concept of corporate responsibility in the specific context of corporate environmental responsibility (CER), evaluate its advantages, legal intricacies and ontological elements, and to critically examine its practice in terms of compliance with the CER’s global goals and demands within the environmental legal system of Nigeria. It will identify the existing international and national laws of the CER and show whether they are effective and consistent with the goals and objectives of CER. In order to achieve this aim, specific objectives are fixed:

(a) To identify and discuss the existing corporate environmental related international and national laws and examine the extent to which they are consistent with the goals of international law on the environment.

(b) To examine the importance and the practice level of such laws in Nigeria.

(c) To identify and examine the overview of global and regional approaches to legalization and regulation of environmental responsibility, with particular emphasis on corporate environmental responsibility (CER).

(d) To make recommendations on the improved legal mechanism for best practice in Nigeria.

1.4. Research Questions

The study will address four main questions, which include:

1) What are the existing international and municipal laws of corporate environmental responsibility?

2) What are the environmental risks associated with ineffective CER?

3) Are companies complying and taking responsibility within the international norms and existing laws of CER to minimize environmental risks in Nigeria?

4) How do policies and legislation for corporate responsibility address environmental risks in Nigeria?

1.5. Research Methodology

The study adopts the descriptive, analytical and explanatory study style. The study also adopted comparative study style in reviewing the CER principles and practices in other jurisdictions. Reliance was placed on primary source materials such as legislative Acts and other legal instruments of both the international and national laws. Also, secondary source materials relied on include case laws, textbooks and other legal research and academic materials such as journals, magazines, Internet sources, law reports, unpublished cases, DVDs (Digital Video Discs), etc. Analysis of expert opinions and jurisprudential authorities from direct reports and institutional documents were also used. These options put together helped in appraising the level of corporate environmental responsibility in Nigeria.

1.6. Scope and Limitation of Study

This work focuses on corporate environmental responsibility and assesses the current level of practice in Nigeria. It is not a work on the generic concept of corporate responsibility. In addition, though the work does not go deeper into analysis of corporate responsibility, but not without a brief conceptual revelation. The greatest limitation has been constraint of time to embark on direct visit to companies to assess their files or records on corporate environmental programmes.