African Charter, which is now adopted by the National Assembly as a domestic law can only create ordinary rights but not fundamental rights. This reasoning may be considered fallacious owing to Order 1 Rule 2 of the FREP Rules 2009 above (see text to n 136) and the judgment of the Jonah Gbemre case upholding the fundamental nature of the provisions of the African Charter vis-à-vis environmental protection and preservation. Whilst it is clear that Fundamental Rights are enforceable rights, not all Human Rights are enforceable, only that the term is used generally to refer to both enforceable and unenforceable rights. Hence it is maintained that ‘human rights include fundamental rights’. In the course of this research, references have been made to regional and international instruments bordering on environmental rights. These instruments, despite their precatory nature are relevant and persuasive in proceedings relating to environmental rights enforcement in Nigeria. It is stated in the Fundamental Rights Enforcement Procedure Rules that: … For the purpose of advancing but not never for the purpose of restricting the applicant’s rights and freedoms, the Court shall respect municipal, regional and international bills of rights cited to it or brought to its attention or of which the Court is aware, whether these bills constitute instruments in themselves or form parts of larger documents like constitutions. It is shown that international treaties and conventions, as well as regional instruments, particularly in Africa, promoting the rights to a safe environment would promote the need for Nigerian Courts to give and maintain an expansive interpretation of the Constitutional rights to life and dignity of the human person rather than restricting or limiting such provisions. This is necessary, owing to the increasing reports of environmental pollution caused by oil and gas activities, which are seen to infringe on basic rights. A cumulative understanding of Fatayi-Williams in Sofekun and justice Aderemi’s observations above, suggests that claimants in cases commenced under the torts of nuisance, negligence and under the strict liability rule as discussed in chapter 1 would be at liberty to invoke constitutional and statutory provisions bordering on fundamental rights in such traditional claims for compensations without necessarily utilising the procedures laid under the Fundamental Rights Enforcement Procedure Rules, and such issues bordering on fundamental rights will be given preferential treatment and accelerated hearing above others. In addition, it is submitted that the enforcement of fundamental rights under the Constitution
International Convention on Civil Liability for Oil Pollution Damage 1992, to which Nigeria and the United Kingdom are signatories, there is the need to address liability issues in oil and gas pollution globally, both onshore and offshore. The International Law Commission (ILC) in its 2003 Report on International Liability in case of Loss from Transboundary Harm Arising out of Hazardous Activities, made recommendations to deal with liability issues by allocating losses among different actors involved in the operations of Hazardous activities. This implies that the ILC is more inclined to address liability issues on an individual basis rather than on the concept of state responsibility. Notwithstanding, it is submitted that the concept of state responsibility, although a principle of international law, should be applied in two categories; both intra and inter-state. That is, as states are under obligation not to cause harm to other states, a state should maintain such obligation not to cause harm to her citizens. In the next chapter, the argument for absolute liability in fundamental rights enforcement with regards environmental pollution caused by oil and gas activities of TNCs is raised; it is a dialectic, taking into consideration the legal and economic implications of what has been discussed in previous chapters, as well as the relevance of legal principles mentioned in the current chapter. In a nutshell, the crux of chapter 6 is to determine whether the standards of liabilities in the torts of negligence, nuisance and under the strict liability rule can be transformed into absolute liability in incidents of environmental pollution relating to breach of fundamental rights of individuals in incidents of environmental pollution.
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