South Sudan: The Oil, Environmental Safety and Fundamental Human Rights

By Tong Kot Kuocnin

LL.B (Juba), LL.M (Nairobi),

 

 

Dec 18, 2018(Nyamilepedia) — On World Environment Day celebrated on the 5th day of the Month of May 2018, First Vice-President Taban Deng Gai presided over the launch of the country’s State of Environment and Outlook Report, a first for the country. The publication is the result of a joint study by UN Environment and the Ministry of Environment and Forestry.

The report acknowledges that the ongoing strife in the country “is the major impediment to good governance, the productive use of natural resources and the protection of the country’s environmental assets”.

It highlights the lack of effective institutions to resolve disputes over ownership of natural resources peacefully and the challenges of millions of refugees, returnees and internally displaced persons. It also notes that climate change and natural hazards have further complicated the environmental situation facing the country.

The report further highlights how climate change could exacerbate access to safe water, lead to poor sanitation and food insecurity.It adds that “a flourishing agriculture sector, which depends on the viability of land and water resources, is crucial to long-term peace and development”. It also recommends that “disaster risk reduction and climate adaptation measures need to be implemented to build a climate resilient society”.

The celebtratipon of the World Environment Day shouldn’t be the end journey. More needed to be done to enhance, protect and conserve the environment since environment itslef is life.

Bearing this in mind, the objectives of this article are two-fold: to present a critical view of the relationship between fundamental human rights, the oil and gas industry and the environmental safety in South Sudan. In so doing, regard will be had to some international conventions, the Constitution of the Republic of South Sudan, 2011 (as Amended) and various literature on the subject.

The reason for picking this topic is not far-fetched as maybe thought about. But it must be bore in mind that no discussion on development and the well being of human beings can take place without regard to the right to life, the natural capital called land, natural resources which includes oil and gas and the environment in which life itself must flourish.

All human activities must take place in the environment in which humans have found themselves. This article is in four parts, the first part introduces the article to the readership, the second part attempts to define ‘environment’ and introduces efforts to care for or protect the environment.

The third part presents fundamental human rights as provided for in the transitional constitution of the Republic of South Sudan, 2011 and their relationship to the environment or environmental rights.

The fourth discusses the protection of the environment through legislation and the fifth analyses the possible effect that direct legislation can have on the oil industry activities and the possible effects for future environmental rights and environmental safety. The work concludes by way of some pieces of advice and recommendations on environmental protection in the oil industry in South Sudan.

 

• The Environment

 

Since June 1972 when the United Nations made a declaration on the human environment at Stockholm, the international community has appreciated environmental rights. By 1992 at the Rio De Janeiro Conference the full import of a healthy environment as an issue of classification of human rights gained ground on a global pedestal.

Of course, defining an Environment is not an easy task. Most treaties, declarations, codes of conduct, guidelines, etc. don’t attempt to define it directly. No doubt this is because it is difficult both to identify and to restrict the scope of such an ambiguous term, which could be used to encompass anything.

However, a legal definition of the environment helps delineate the scope of the subject, determine the application of legal rules, and establish the extent of liability when harm occurs. The word environment is derived from an ancient French word environner, meaning to encircle.

But by broadly applying to surroundings, environment can include the aggregate of natural, social and cultural conditions that influence the life of an individual or community. Thus, environmental problems can be deemed to include such problems as traffic congestion, crime, and noise. Geographically, environment can refer to a limited area or encompass the entire planet, including the atmosphere and stratosphere.

According to John G. Rau and David Wooten, the environment can be defined as the whole complex of physical, social, cultural, economic, and aesthetic factors which affect individuals and communities and ultimately determine their form, character, relationship and survival.

Hence, the environment can be defined as our surroundings, especially material and spiritual influences which affect the growth, development and existence of a living being. In relation to rights generally, environmental rights are posited to belong to the third generation of rights. Interestingly, all generations of rights are seen to be interconnected, interrelated, inter-dependent indivisible, inalienable and fundamental.

Finally, it should be kept in mind that any definition of the environment will have the Alice-in-Wonderland-quality of meaning that we want it to mean.

 

• The Rights in the South Sudanese Transitional Constitution, 2011

 

The Transitional Constitution of the Republic of South Sudan 2011 (amended 2013 and 2015) provides under Article 41(1) the right of “Every person or community shall have the right to a clean and healthy environment”.

The constitution provide even further under Article 41(2) that “Every person shall have the obligation to protect the environment for the benefit of present and future generations”.

The constitution equally on the same note provides furthermore under Article 41(3) that “Every person shall have the right to have the environment protected for the benefit of present and future generations, through appropriate legislative action and other measures that:

1. Prevent pollution and ecological degradation;
2. Promote conservation; and
3. Secure ecologically sustainable development and use of natural resources while promoting rational economic and social development so as to protect genetic stability and bio-diversity.

The constitution stipulates further under article 41(4) that “All levels of government shall develop energy policies that will ensure that the basic needs ofthe people are met while protecting and preserving the environment”.

The Transitional Constitution, 2011 has anchored in the fundamental rights of everyone to a safe, clean and healthy environment and has tasked all the governmental agencies involved in oil exploration, development and production to be keen enough with environmental protection.

On that note, the provisions of the Constitution should have in detail been reinforced by a statutory law on the protection of environment to give effect to the rights stipulated in the constitution.

However, as a consequence of the lacking of legally established environmental system, no environmental standards are yet in place in South Sudan. The Draft Environmental Policy (2010), however, mentions that such standards shall be established. More specifically, the Enviornmental Protection Bill of 2010 foresees that the Authority, in consultation with the Lead Agencies, shall develop the following types of environmental standards:

1. Air quality standards;
2. Water quality standards;
3. Standards for discharging effluents into the environment;
4. Standards for the control of noxious smells;
5. Standards for the control of noise and vibration pollution;
6. Soil quality standards;
7. Standards for the minimisation of radiation; and
8. Other standards such as on waste, industrial and chemical products etc.

Unfortunately, this Bill hasn’t been deliberated on and passed into law by the Transitional National Legislative Assembly since 2010 and is therefore still lying before the Parliament for deliberation and subsequent passing and assented to by the President of the Republic.

 

• The Protection of Environment through Legislation

 

Protecting the environment through legislation is very important. The South Sudan Transitional Constitution, 2011 provides under Article 173 (2)(i) that ‘protecting the environment and biodiversity’. This reminds us of the importance of protecting the environment we lives in as the environment is life.

Equally, the constitution stipulates further under 173(2)(n) that as a guiding principle for petroleum and gas development and management, has to‘ensure accountability for violations of human rights and degradation to the environment caused by petroleum and gas-related operations’.

The existing legal regime for the management of the petroleum industry has been overtaken by realities and leaves a lot to be desired. It may not be enough to merely amend the relevant laws without fully revisiting the entire regime to take into account the needs of the day.

Now that the failure of the regulatory framework is a glaring fact, there is need for legislation that goes way beyond regulating exploration and upstream production operations, to cover more satisfactorily the full range of challenges that arise in an oil driven economy. It is however, crucial to bore in mind that there’s yet an environmental legalistion to guide and protect the environment in South Sudan as the environmental protection bill is still lying before the National Legislative Assembly since 2010.

 

• The Possible effects of Direct Legislation on Oil Industry in South Sudan

 

Given Africa and indeed the South Sudanese experience with mismanagement of oil revenues, it is important from the outset to put in place a joint government-civil society Petroleum Oversight Committee (P.O.C) comprising government officials and people from civil society. All oil revenues must fall within the scope of this committee.

In Chad for example there is a committee known as: College de Controle et de Surveillance des Resources Petrolieres. It is composed of: Representatives of government, Parliament, Supreme Court and civil society. Direct oil revenues can neither be allocated nor disbursed toward specific programs without the approval of the oversight committee.

Chad has another regulatory agency known as: Comite Technique National de Suivi et de Controle (CTNSC). This committee is Chad’s inter-ministerial committee responsible for monitoring and following up on the environmental and social impacts of projects. It was created in July 1997. It is also responsible for overseeing the implementation of World Bank’s Petroleum sector Capacity Building Project.

Equally, other Measures of Improving the Environment as possible effects of direct legislation on oil industry in South Sudan includes:-

1. Capacity Building: In order to strengthen the government’s capacity to negotiate with oil companies, capacity building of the state institutions concerned with oil must not lag behind oil operations. For instance, institutions tasked with supervising the social and environmental impacts of oil activities must have the capacity to do so from the start of oil operations.
2. Ethical conduct for security firms in oil areas: The government should ensurethat the employment of local people to provide security at oil facilities does notresult in abuses by those hired or in violent conflict between and withincommunities for the right to the contracts. All security firms engaged must beheld to ethical conduct and respect for human rights and must act in a lawfulmanner.
3. Engendering the oil industry activities: The policy must pronounce itself onthe strategies to be adopted to mitigate the adverse effects of oil exploration andproduction on the economic livelihoods of women and communities in which oilexploration and production activities exist or are carried out in.
4. Oil as an agent for economic transformation: The policy should be clear onthe overall strategic role of oil in the economic development of the country,especially its contribution to economic transformation.

 

• Conclusion and Recommendations

 

The Government of the Republic of South Sudan should be mindful of maintaining clean and healthy environment as key issues to sustainable development and happiness of the citizens of the nation in accordance with International best practices as provided in various Conventions.

Suffice it to say that in event of any environmental pollution and degradation that affects communities around oil producing areas, an adequate compensation as of right must be paid to the affected people as well as effective machinery being put in place to restore the affected environment back to its prior condition as much as practicable.This will arrest complaints and the effects of oil industry activities particularly in the oil producing areas.

Unfortunately the provision on environment in the South Sudanese Constitution is not yet generally accepted as justiceable obviously because of lack of environmental litigation mechanims in the constitutional provisions. Therefore, there’s a need for immediate amendment of the Constitution to make the provisions for environmental protection justiceable so as to provide easy access to justice on environmental and social issues by citizens and communities negatively affected by oil industry activities.

However, the policy recommendations would be that a creative oil governance mechanism for South Sudan should be underlined by the following considerations:

1. The overall strategic role of oil in the economic development of the countryespecially its contribution to economic transformation and the utilization ofspecific percentage of the oil revenue to fund environmental protection agenciesand ensure environmental protection and sustainability.
2. Building the requisite local technical expertise for responsible management ofthe environment in the oil industry and thus making it easier to combat theincidents that may have negative effect on the environment as they occur.
3. Direct linkage between oil revenues and raising the standard of living of ordinary South Sudanese and poverty eradication. A percentage of the oil revenuesshould go directly to poverty eradication, stipulating what percentage for whichareas (e.g. education, agriculture, health, rural development) and this should be more than the 2% derivation formula currently in place which always goes to the corrput state governments in oil producing areas hence relegating the development meant to the area.
4. Mitigating and remediating the damages to the environment attendant from oilexploration, production and distribution activities.

The author holds Bachelor of Laws (LL.B) Degree from the University of Juba and a Master of Laws (LL.M) specializing in Law, Governance and Democracy from the University of Nairobi. He is an Advocate before All Courts in South Sudan. His areas of research interest includes: Constitutional Law and Human Rights, Rule of Law and Good Governance. He can be reached @ kuocnin.lawyer@gmail.com/tongbullen@gmail.com respectively.