The activities of MOSOP and the trial and execution of the “Ogoni Nine” in November 1995 brought to the international stage injustices that until then had been largely hidden from international view. The outrage felt at the executions, despite pleas for clemency from around the globe, brought an unprecedented reaction from an international community that had previously paid little attention to the human rights violations associated with the oil industry in Nigeria.9
The Commonwealth Heads of Government Meeting (CHOGM) which was taking place in Auckland, New Zealand at the time of the executions immediately demonstrated its outrage by suspending Nigeria from the Commonwealth, the first time that this step had been taken. Nigeria was given two years within which to comply with the terms of the Commonwealth Harare Declaration, which commits Commonwealth members to democratic governance.10 An eight-member Commonwealth Ministerial Action Group (CMAG) was appointed to consider persistent violations of the Harare principles, which has met periodically since 1995 with Nigeria at the top of its agenda.11 In April 1996, CMAG recommended sanctions to be adopted by the Commonwealth against Nigeria, though these were never adopted.12
Nigeria remains suspended from the Commonwealth, although the CHOGM meeting in Edinburgh, Scotland, in October 1997, decided not to expel the country, despite lack of progress toward fulfilling the Harare principles. CMAG met for the first time since the death of General Abacha on October 8 and 9, 1998, and adopted a statement welcoming the positive steps taken by General Abubakar, recommending that member states begin to lift bilateral sanctions against Nigeria, and deciding to meet again following the presidential elections scheduled for February 27, 1999, with a view to making recommendations regarding the full return of Nigeria to the Commonwealth.13
The United Nations and International Labour Organization
The United Nations General Assembly adopted a resolution on Nigeria on December 22, 1995, in which it condemned the executions of Ken Saro-Wiwa and the others, welcomed the steps taken by the Commonwealth, and expressed “the hope that these actions and other possible actions by other States” would encourage Nigeria to restore democratic rule, thus (unusually) encouraging member states to impose their own sanctions even without Security Council action.14 The U.N. secretary general sent a fact-finding mission to Nigeria in April 1996, which reported damningly on the trial and execution of the “Ogoni Nine,” while also commenting on the general human rights situation in Nigeria. The team recommended, among other things, that the Nigerian government establish “a panel of eminent jurists” to consider financial compensation for the relatives of those hanged, and that a committee chaired by a retired judge and including representatives of the Ogoni and other minority communities makerecommendations in connection with the economic and social conditions in those communities.15
In 1997, the U.N. Commission on Human Rights voted to appoint a special rapporteur on the situation of human rights in Nigeria, having failed to do so in 1996. The Nigerian government refused to allow the rapporteur, Indian attorney-general Soli Jehangir Sorabjee, entry to Nigeria, and his report to the 1998 session of the commission was therefore based on information gathered outside the country. The report concluded that “widespread violation of human rights occurs in Nigeria,” that “the Nigerian legal system does not currently provide effective protection of human rights,” and that “the rule of law does not prevail in Nigeria,” as well as detailing a range of specific abuses. In addition, “The Government has failed to address the plight of the Ogoni people and to protect their human rights. The recommendation of the Secretary-General’s fact-finding mission concerning the appointment of a committee for introducing improvement in the socio-economic conditions of minority communities has been ignored.” Moreover, “The Nigerian government is indifferent towards the right to development and to a satisfactory environment. Issues relating to environmental degradation in the Niger Delta region alleged to be caused by the operations of the Shell Petroleum Development Company have received insufficient attention.”16
In May 1998, the U.N. Committee on Economic, Social and Cultural Rights considered Nigeria’s initial report under the Convention on Economic Social and Cultural Rights. The committee “note[d] with alarm the extent of the devastation that oil exploration has done to the environment and quality of life in the areas such as Ogoniland where oil has been discovered and extracted without due regard to the health and well-being of the people and their environment,” and recommended that “[t]he rights of minority and ethnic communities—including the Ogoni people—should be respected and full redress should be provided for the violations of the rights set forth in the Covenant that they have suffered.”17 The Commission voted, by revolution 1998/64, to extend the special rapporteur’s mandate by another year.
The report of the special rapporteur to the 1998 session of the General Assembly noted improvements in the human rights situation since GeneralAbubakar came to power, but also reported that many human rights problems remained essentially unchanged. The report repeated the majority of the recommendations to the Commission on Human Rights, while endorsing the conclusions of the Committee on Economic, Social and Cultural Rights.18 The rapporteur was finally able to visit Nigeria in November 1998, and traveled to Ogoni, where he urged the appointment of an independent inquiry into environmental and human rights problems in the delta.19
In March 1998, in light of the continued detention of union leaders and violations of ILO Convention 87 on freedom of association, the Governing Body of the International Labor Organization voted to establish a commission of inquiry into abuses of labor rights in Nigeria, its strongest expression of disapproval. Following the death of General Abacha, when the new government released detained union leaders and repealed several decrees restricting union activity, the ILO suspended the work of the commission of inquiry and gave the government the opportunity instead of receiving a “direct contacts mission.” Such a mission visited Nigeria from August 17 to 21, 1998 and reported to the meeting of the ILO Governing Body held in November 1998, noting the improved situation, including the release of detained trade unionists from the oil sector and the repeal of decrees dissolving the national executives of oil unions, but recommending further steps by the Nigerian government to respect freedom of association.20
The African Commission
On December 18 and 19, 1995, at the instance of Nigerian and international nongovernmental organizations, the African Commission on Human and Peoples’ Rights (an organ of the Organization of African Unity (OAU)) held its second ever extraordinary session at Kampala, Uganda, in order to consider the human rights situation in Nigeria. The commission resolved to send a fact-finding mission to Nigeria as a result of this session. The mission finally traveled to Nigeria in March 1997, but the commission has not yet made a public report of its findings. In October 1998, the Commission finally decided on communications brought beforeit in relation to the trial and execution of the Ogoni Nine, alleging violations of articles 4, 7, 9, 16, and 26 of the African Charter on Human and Peoples’ Rights.21
The European Union and its Member States
Following the executions of Ken Saro-Wiwa and his co-defendants, the European Union imposed sanctions on Nigeria additional to those adopted following the annulment of the 1993 elections and subsequent military coup.22 Since 1995, no further sanctions have been imposed, although the European Parliament called for an oil embargo on Nigeria under the Abacha government on several occasions, as did the ACP-E.U. Joint Assembly (in which members of the European Parliament meet with representatives of the African, Caribbean, and Pacific (ACP) states every six months).
Following the election of the Labour Party government in May 1997, the U.K. took a much stronger line on Nigeria, though it ruled out a unilateral oil embargo against Nigeria (because of the similarity of Nigerian to Brent crude, the U.K. imports little Nigerian oil in any event). As a form of retaliation for this stance, the European office of NNPC was relocated from London to Paris: even though the great majority of Nigerian crude is traded through London, the Nigerian government cited “commercial reasons” for the move. With the death of Abacha, the NNPC London office has been reopened.23 The U.K.’s Department for Trade and Industry continued to sponsor trade missions to Nigeria during Abacha’s regime, apparently against the wishes of the Foreign and Commonwealth Office; British trade to Nigeria has nevertheless declined in recent years. France andGermany, Nigeria’s other largest trading partners in Europe, consistently advocated a softer line, and both countries repeatedly granted visas for visits by Nigerian officials, in violation of E.U. measures against Nigeria. In the case of France, former petroleum minister Dan Etete visited on several occasions, presumably for discussions about the French role in the oil industry. Elf and Total were prominent in lobbying for increased business with Nigeria, and were rewarded with contracts from the Nigerian government. Both U.K. prime minister Tony Blair and French president Jacques Chirac met with General Abubakar in September 1998.
On October 28, 1998, the Council of Ministers of the European Union voted to remove most of the sanctions applied to the Nigerian government.24 All measures other than the embargo on arms, munitions and military equipment, the suspension of military cooperation, and the cancellation of training courses for Nigerian military personnel (except for non-combative courses to encourage respect for human rights and prepare the military for democratic control by a civilian government) were repealed, and members of the Nigerian military and government are now able to travel freely to E.U. countries.25 The assistant chief of defense staff in the U.K., Maj. Gen. Christopher Drewry, traveled to Nigeria shortly after this decision, to discuss the resumption of military cooperation.26
The United States
Following the executions of Ken Saro-Wiwa and his co-defendants, the U.S., like the European Union, imposed additional sanctions on Nigeria.27 More recently, the Clinton administration’s position on Nigeria at times appeared confused and directionless. In March 1998, for example, in advance of President Clinton’s trip to Africa, Assistant Secretary of State for African Affairs Susan Rice stated that “electoral victory by any military candidate in the forthcoming presidential election in Nigeria would be unacceptable.” In South Africa, however, Clinton himself stated only that “if Abacha stands, we hope he will stand as a civilian.”28
Some members of the U.S. Congress tried to play a role in strengthening U.S. policy on Nigeria under the Abacha government. In November 1995, Senator Nancy Kassebaum and Congressman Donald Payne introduced bills (S1419 and HR2697) which would have codified existing sanctions in place, as well as prohibiting any new investment in Nigeria, including in the energy sector, and imposing an asset freeze on members of the Nigerian government, a ban on air links and other measures. Payne’s bill was reintroduced in June 1997, and in May 1998, Representatives Donald Payne and Ben Gilman introduced a new bill, (HR3890), and Senator Russell Feingold a companion bill (S2102), which set out benchmarks for the lifting of existing sanctions, although neither included the additional economic measures proposed in the 1995 drafts. Various committees of the Senate and House of Representatives also held hearings on U.S. policy towards Nigeria, at which several Nigerian and U.S. human rights and opposition groups argued in favor of a unilateral oil embargo, opposed by representatives of the administration, the Corporate Council on Africa, and Representative William Jefferson and former Senator Carol Moseley-Braun.
Several U.S. cities and counties have adopted resolutions forbidding municipal authorities from purchasing products from Nigeria or from companiesthat do business in Nigeria.29 There was also an initiative to introduce legislation for similar sanctions in the Maryland state legislature in March 1998, which was defeated: Deputy Assistant Secretary David Marchick gave testimony on behalf of the Clinton administration opposing the bill. U.S.-based oil companies, including Mobil, Chevron, Texaco, and others, invested in lobbying campaigns against unilateral sanctions by U.S. government institutions, through the Corporate Council on Africa, a coalition of U.S. corporations known as USA Engage, and bilaterally.30
With the death of Abacha, the U.S. joined other states and multilateral bodies in welcoming the changes brought by General Abubakar, and Under Secretary of State for Political Affairs Thomas Pickering led a delegation to Abuja (in whose presence MKO Abiola collapsed from a heart attack). Assistant Secretary of Defense for International Security Affairs Franklin D. Kramer visited Nigeria in September 1998; the deputy commander of the U.S. European Command, Admiral Charles Abbot, visited in November. On October 30, 1998, the U.S. joined the E.U. in lifting visa restrictions on the Nigerian military and government. Other sanctions consequent on the denial of counter-narcotics certification under Section 481 of the Foreign Assistance Act, including opposition to loans from development institutions, remain in place, as does the ban on direct air flights to the U.S. due to safety concerns. General Abubakar met with President Clinton in September 1998, while visiting the U.S. to attend the U.N. General Assembly; Special Presidential Envoy for the Promotion of Democracy in Africa Jesse Jackson traveled to Nigeria in November.
Codes of Conduct for Business
There have been few serious attempts by governments where the international oil companies have their headquarters to hold those companies to the same standards outside their jurisdictions as they are obliged to follow under national (or, for example, E.U.) regulations. One of the few statements criticizing the oil companies was made in November 1997 by Dutch minister for development cooperation Jan Pronk, who commented at a seminar that Royal Dutch/Shell had “on balance” done too little for the Ogoni during its years of operation in thatcommunity. Later, under pressure, he partially retracted the statement, saying that Shell had “taken steps to counter the negative effects of its operations.”31
Efforts to establish binding codes of conduct for multinationals have been, to date, unsuccessful, although there are a number of voluntary codes proposed by nongovernmental and intergovernmental organizations, and by individual governments. Perhaps most significant of these efforts, because the business sector itself played a role in drafting it, is the ILO Tripartite Declaration of Principles Concerning Multinational Enterprises and Social Policy, adopted by the ILO Governing Body in 1977. The declaration states that “all Parties concerned by this Declaration should respect the sovereign rights of States, obey the national laws and regulations, give due consideration to local practices and respect relevant international standards. They should respect the Universal Declaration of Human Rights and the corresponding International Covenants adopted by the General Assembly of the United Nations as well as the Constitution of the International Labour Organization and its principles according to which freedom of expression and association are essential to sustained progress. They should also honour commitments which they have freely entered into, in conformity with the national law and accepted international obligations.”32 The Organization for Economic Cooperation and Development (OECD) also adopted a Declaration and Guidelines on International Investment for Multinational Enterprises in 1976, since revised several times.
The U.N. Commission on Transnational Corporations, established in 1974, developed a draft U.N. Code of Conduct on Transnational Corporations which was submitted to the U.N. Economic and Social Council (ECOSOC) in 1990, though it has not been adopted by the General Assembly. Paragraph 14 of the draft code provides that “Transnational corporations shall respect human rights and fundamental freedoms in the countries in which they operate. In their social and industrial relations, transnational corporations shall not discriminate on the basis of race, colour, sex, religion, language, social, national and ethnic origin or political or other opinion.”33 In 1994, the Commission on Transnational Corporations wasmoved from its position under ECOSOC to become a commission of the Trade and Development Board, and was renamed the Commission on International Investment and Transnational Corporations, reflecting a shift in emphasis from holding companies accountable for their activities to the promotion of foreign direct investment in developing countries.
Various branches of the U.S. government have taken steps to impose obligations on U.S. businesses operating abroad with respect to human rights, as well as, more commonly, with economic objectives in view. The most significant legislative initiative in this regard was the Comprehensive Anti-Apartheid Act (CAAA) of 1986, since repealed, designed to limit investment in South Africa under the apartheid regime. In 1996, the U.S. passed legislation, partially modeled on the CAAA, giving the president authority to prohibit new investment by U.S. citizens or companies in Burma if the Burmese military government physically harmed, rearrested or exiled opposition leader Aung Sang Suu Kyi, or committed large scale oppression against the political opposition. In May 1995, President Clinton announced a set of “model business principles,” a voluntary code of ethics to be used by U.S.-based multinational companies, which supports respect for fundamental human and labor rights, though without sufficient detail as to give clear guidance. There have been discussions about the establishment of an E.U. code of conduct for multinationals, prompted by the European Parliament, but these have yet to lead to any concrete steps.
The OECD adopted on November 21, 1997, a Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, which was signed by the twenty-nine members of the OECD and five other governments (Argentina, Brazil, Bulgaria, Chile and the Slovak Republic). When it comes into force, the convention commits OECD members to “take such measures as may be necessary to establish that it is a criminal offence under its law for any person intentionally to offer, promise or give any undue pecuniary or other advantage, whether directly or through intermediaries, to a foreign public official, for that official or for a third party, in order that the official act or refrain from acting in relation to the performance of public duties, in order to obtain or retain business or other improper advantage in the conduct of international business.”34 In the U.S.,the Foreign Corrupt Practices Act makes it a crime “to make use of the mails or any means or instrumentality of interstate commerce corruptly in furtherance of an offer, payment, promise to pay, or authorization of the payment of any money, or offer, gift, promise to give, or authorization of the giving of anything of value to any foreign official” for the purposes of influencing any act or decision of a foreign government.35 Within the E.U., the rules vary, but payment of bribes overseas is generally not illegal and is even tax-deductible in some countries. The E.U. Council of Ministers adopted, in October 1997, a Common Position making provision for member states to support the drawing up of international instruments making bribery of foreign officials a criminal offence.36
10 On October 20, 1991, the Commonwealth Heads of Government Meeting adopted the Harare Declaration, which committed members of the Commonwealth to “certain fundamental principles,” including liberty of the individual, equal rights for all citizens, and “the individual’s inalienable right to participate by means of free and democratic political processes in framing the society in which he or she lives.”
11 CMAG examined, in the first instance, the cases of Nigeria, Sierra Leone and the Gambia, the three Commonwealth countries at the time of the CHOGM meeting without elected governments, though Nigeria dominated the discussions even before elected governments were restored in the Gambia and Sierra Leone.
12 On April 23, 1996, following its second meeting, CMAG recommended various measures to press for change in Nigeria, including visa restrictions on and denial of educational facilities to members of the Nigerian regime and their families, withdrawal of military attachés and cessation of military training, an embargo on the export of arms, a visa-based ban on sporting contacts, and the downgrading of diplomatic and cultural links. It was also recommended that a ban on air links and additional economic measures, including freezing the financial assets and bank accounts in foreign countriesof members of the regime and their families, should be considered in consultation with the E.U., U.S. and other members of the international community. At a further meeting on June 24-25, 1996, however, the imposition of the sanctions agreed in April, which had been delayed to give Nigeria time to engage in dialogue with CMAG about its human rights record, was further postponed, although existing measures consequent on Nigeria's suspension from the Commonwealth remained in place.
13 Tenth Meeting of the Commonwealth Ministerial Action Group on the Harare Declaration (CMAG), “Joint Statement on Nigeria,” London, October 9, 1998. The eight members of CMAG are currently Zimbabwe (chair), New Zealand, United Kingdom, Canada, Ghana, Malaysia, Barbados, and Botswana (in October 1997, Barbados and Botswana replaced Jamaica and South Africa, who had originally been in the group).
14 General Assembly resolution 50/199 on the Situation of Human Rights in Nigeria, December 22, 1995.
15 Annex I to U.N. Document A/50/960.
16 “Situation of human rights in Nigeria: Report submitted by the Special Rapporteur of the Commission on Human Rights, Mr. Soli Jehangir Sorabjee, pursuant to Commission resolution 1997/53,” U.N. Document E/CN.4/1998/62.
17 “Concluding Observations of the Committee on Economic, Social and Cultural Rights: Nigeria,” U.N. Document E/C.12/1/Add.23, May 13, 1998.
18 “Situation of human rights in Nigeria: Interim Report prepared by the Special Rapporteur of the Commission on Human Rights in accordance with General Assembly resolution 52/144 and Economic and Social Council decision 1998/262,” U.N. Document A/53/366.
19 “U.N. Envoy Urges Probe of Damage Caused by Oil Companies in Nigeria,” AP, November 30, 1998.
20 ILO Press Release, “Freedom of Association: ILO Mission Completes its Visit to Nigeria,” August 1998; “Report on the Direct Contacts Mission to Nigeria (17 to 21 August 1998),” ILO Document GB.273/15/1, November 1998.
21 Secretariat of the African Commission on Human and Peoples’ Rights letter to Human Rights Watch, December 8, 1998. Decisions of the African Commission are only made public following adoption by the OAU Assembly of Heads of State and Government.
22 By Common Positions of the Council of the European Union dated November 20, 1995 and December 4, 1995, European Union member states agreed to impose visa restrictions on members (including civilians) of the Nigerian Provisional Ruling Council and the Federal Executive Council and their families (in addition to members of the Nigerian military and security forces and their families, on whom restrictions were imposed in 1993); to expel all military personnel attached to the diplomatic missions of Nigeria in member states and to withdraw all military personnel attached to diplomatic missions of E.U. members in Nigeria; to deny visas to official delegations in the field of sports and to national teams; to introduce a prospective embargo on arms, munitions and military equipment (allowing existing contracts to be fulfilled); and to suspend development cooperation except to projects through NGOs and local civilian authorities.
23 Energy Compass, vol.9, no.35, August 28, 1998.
24 The French government succeeded in obtaining a modification to E.U. visa restrictions in November 1997 that would allow the Nigerian team to play in the 1998 soccer world cup and would also allow E.U. member states to grant visas to members of the government on “urgent humanitarian grounds.” E.U. Council of Ministers Common Position of November 28, 1997.
25 In addition, dialogue on development cooperation may be renewed, with a view to re-engagement after the installation of a civilian government; in the meantime, development cooperation may continue only for actions in support of human rights and democracy, and concentrating on poverty alleviation in the context of decentralized cooperation through local civilian authorities and NGOs. E.U. Council of Ministers Common Position of October 28, 1998. The Common Position will be reviewed on or before June 1, 1999.
26 Lagos NTA Television Network, November 21, 1998, as reported by FBIS, November 21, 1998.
27 The United States extended pre-existing restrictions on military links (which included the termination in July 1993 of all military assistance and training) by banning the sale and repair of military goods. It extended a pre-existing ban on the issue of visas to senior military officers and senior government officials and their families to cover “all military officers and civilians who actively formulate, implement or benefit from policies that impede Nigeria's transition to democracy”; and introduced a requirement that Nigerian government officials visiting the U.N. or international financial institutions in the U.S. remain within twenty-five miles of those organizations. It also stated it would begin consultations immediately on appropriate U.N. measures.
28 James Rupert, “Clinton Sows Some Confusion on Nigeria Policy,” Washington Post, March 28, 1998.
29 They include: Alameda County, California; Berkeley, California; Oakland, California; St Louis, Missouri; Amherst, Massachusetts; Cambridge, Massachusetts; and New Orleans, Louisiana.
30 See, for example, Ken Silverstein, “Nigeria Deception,” Multinational Monitor, January/February 1998, vol. 19, nos. 1 and 2.
31 Het Financieele Dagblad (Netherlands), November 20, 1997.
32 Paragraph 8, ILO Document OB Vol.LXI, 1978, Series A, No.1. The ILO is a tripartite organization, with representatives of governments, business, and labor having access to its decision-making organs as members of national delegations.
33 Negotiations on the code ground to a halt in 1992, opposed by the corporations themselves and by governments from the developed world, due to concerns at lack of protection for intellectual property rights, profit repatriation and expropriation of property. See, Barbara A. Frey, “The Legal and Ethical Responsibilities of Transnational Corporations in the Protection of International Human Rights,” Minnesota Journal ofGlobal Trade (Winter 1997) vol.6, pp.153-188.
34 Article 1(1) Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, adopted by the Negotiating Conference of the OECD, November 21, 1997. The convention enters into force on the sixtieth day following the date on which five of the ten countries with the largest export shares and which represent by themselves at least 60 percent of the total exports of those tencountries have ratified the convention. The members of the OECD are: the U.S., Germany, Japan, France, the U.K., Italy, Canada, Korea, Netherlands, Belgium, Luxembourg (the ten largest; Belgium and Luxembourg are counted together for export figures), Spain, Switzerland, Sweden, Mexico, Australia, Denmark, Austria, Norway, Ireland, Finland, Poland, Portugal, Turkey, Hungary, New Zealand, the Czech Republic, Greece, and Iceland.
35 Foreign Corrupt Practices Act of 1977, section 30A(a).
36 In May 1997, the European Council adopted a Convention on the Fight against Corruption Involving Officials of the European Communities or Officials of Member States of the European Union, which establishes a commitment by member states of the E.U. to take necessary measures to make bribery a criminal offence at national level, but the convention does not apply outside the E.U.