In Africa, and more particularly in West Africa, most vehicles run on fuel of a quality that is considerably lower than the fuel that is available in OECD (Organisation for Co-operation and Economic Development) countries.Footnote 1 Because of their high sulphur content, these fuels – which the industry has labelled ‘African quality’ – contribute greatly to air pollution in urban environments and poison the health of millions.Footnote 2
This piece is a case study of the now well-known recent campaign to end this threat to Africans’ right to health, a campaign that brought together activists, scientists and legislative drafters. In just a few short months, the campaign shone a spotlight on this under-appreciated human rights abuse, pushed several African states to announce new policies to protect their people, and unleashed the power of social media on companies and institutions in Europe that previously maintained a fiction of clean hands. Thus, the piece aims to outline some of the key success factors of the campaign, and discusses some implications of the campaign both in regard to this particular issue, as well as to business and human rights more generally.
I The Threat of ‘African Quality’ Fuels
There is hardly anyone who has not heard of the recent Volkswagen scandal – ‘Dieselgate’, as it was later named – in which it was revealed that the German automobile giant had falsified the results of anti-pollution tests for its diesel motors in the United States. This case caused a tremendous outcry from the public worldwide, even though it involved cars running on low-sulphur fuel. But the severity of Dieselgate is dwarfed by a mostly ignored scandal in Africa: a flood of low-quality fuel is produced and sold in Africa by large European commodities trading firms – mainly from Switzerland – that exploit the divergence in regulations on the sulphur content of fuels between OECD and African countries.
From the ports of Amsterdam, Rotterdam and Antwerp, dozens of tankers set off daily for the Gulf of Guinea with millions of litres of gasoline and diesel in their holds destined for West Africa. An investigation by the Swiss non-governmental organization (NGO) Public Eye (formerly Bern Declaration)Footnote 3 and several African civil society organizations has revealed that these fuels are produced by blending petroleum with various cheap petrochemicals – a practice that is illegal in the European Union (EU) and the United States but legal in Africa despite its toxicity. Analysis by an independent laboratory revealed sulphur contents of these fuels of up to 378 times that permitted in Europe. For example, diesel samples collected by groups in Côte d’Ivoire and Ghana had a sulphur content of over 200 and 150 times the levels permitted under EU regulations. Other dangerous substances, such as benzene and polycyclic aromatic hydrocarbons (PAH), were also detected.
Whereas the sulphur content of diesel in Europe and North America has been reduced to 10 and 15 parts per million (p.p.m.), respectively, most of the developing world still allows a sulphur content of up to a thousand times those levels. These fuels have been directly linked to poor air quality and labelled a public health ‘ticking time bomb’Footnote 4 that will result in tens of billions of dollars in health benefits lost to sub-Saharan Africa over the next ten years.Footnote 5 Hence, Public Eye’s investigation demonstrated that European firms were taking advantage of the massive divergence between world fuel quality standards to the detriment of millions of Africans.
II Inside the Campaign
Within months of the release of the investigation report, major changes were already in the air. Media all over Africa and the world – from The Ghanaian Times to Le Monde in France and Britain’s The Guardian – reported on the links between low-quality fuel, corruption and impacts on public health. As a result, five West African countries – Benin, Côte d’Ivoire, Ghana, Nigeria and Togo – announced that they would ban the importation of high-sulphur fuels.Footnote 6 Meanwhile, pressure from civil society groups led to a series of multi-stakeholder meetings between the Dutch and Belgian governments, civil society and industry representatives, and Nigerian officials that produced a commitment to low-sulphur fuels in West Africa. This development, it is hoped, will lead to the end of the use of the Ports of Amsterdam, Rotterdam and Antwerp for the blending and export of ‘African quality fuels’. Thus, the campaign had an almost immediate impact at the highest political level with the prospect of leading to tangible improvements of the situation within a very short time. Compared with how such campaigns usually play out, this immediacy seems extraordinary, but can be tied to a number of specific factors.
First, the evidence-based, rigorously scientific nature of the study at the heart of the campaign proved with hard numbers that European companies were exploiting differences in fuel-quality standards to sell toxic diesel to poor countries. The samples of fuel were carefully collected according to rigorous protocols to avoid contamination and analysed at internationally recognized laboratories, which made it difficult to dismiss the groups’ claims as flawed or misconstrued. Because of the science-based credibility that the high-quality testing conferred on the groups’ claims, they were able to pierce the illusion that the involved Swiss and European commodities traders had clean hands, an image that the large exporting companies took great pains to perpetuate and which the campaign had to overcome to be successful.
Second, the campaign featured effective collaboration between African and global civil society organizations. For example, in Côte d’Ivoire, the process began in earnest in August 2014, when local groups – with instruction on methodology from Public Eye – took samples of diesel and gasoline sold by Vivo Energy and sent them for analysis to a reference laboratory. Additional samples were taken from a Puma Energy service station in San Pedro in January 2016. These samples showed – as expected – that the petroleum products on sale in Côte d’Ivoire surpassed European limits on sulphur content by a factor of between 15 and 200.
The Extractive Industries Research and Advocacy Group (Groupe de Recherche et de Plaidoyer sur les Industries Extractives, or GRPIE), an Ivoirian organization, led the advocacy campaign to turn these results into concrete action. The Dirty Diesel campaign was launched in earnest on 15 September 2016, in Abidjan, with a series of press conferences and meetings. GRPIE spread the word through social media, talked to journalists, and published articles about the study’s findings that included statements by both local groups and Public Eye. They also organized meetings with political decision makers to push them to adopt stricter fuel quality standards.
The campaign was successful at broadly raising awareness, but at first Ivoirian officials were unwilling to recognize the implications for the country. After the initial press conference, Prime Minister Daniel Kablan Duncan insisted that petroleum products in Côte d’Ivoire met international standards and that the problem, if it existed, was in other countries. The Minister of Environment reassured the public that car pollution in Côte d’Ivoire was still minor – an assertion that contradicted a study the Ministry had published just a few months earlier.Footnote 7 The results of the study were, however, difficult to refute, and government officials eventually fell back on technical and financial arguments: Côte d’Ivoire lacks the capacity to produce low-sulphur fuel. The estimated cost of a refinery with the proper capacity is US$500 million, and it would take five years to build. This sort of limitation exists in each of the countries that the campaign targeted.
Third, the groups effectively linked global to local … and back again. The Dirty Diesel report and all the public activity around it effectively brought the actions of Swiss, Dutch and Belgian companies and institutions to the attention of African citizens and policy makers. The publicity campaigns in each country and organizing civil society groups successfully lit the fire that led to five countries promising to improve fuel sulphur-content standards. Of course, this did not happen overnight; local political figures tried to deny the results or to plead poverty and lack of capacity as an excuse for inaction. However, the publicity embarrassed the African Refiners Association into announcing that it was backing tighter standards for fuel sulphur content – a move that then put the spotlight back on local governments to mandate and finance the required upgrades.Footnote 8
The groups did not stop there; they knew that they had to spur on action in the countries of origin as well. The next stage was Operation ‘Return to Sender’, a public stunt in which civil society organizations loaded a container filled with polluted air from Accra onto a ship and sent it to Trafigura, a Geneva-based commodities trader. The public was able to follow the ship’s three-week voyage to Antwerp via an internet-based ship-tracking tool. After being unloaded in Antwerp and forwarded to Geneva, Public Eye had the container delivered to Trafigura, accompanied by a petition with 20,000 signatures, demanding that Trafigura stop contributing to the production, transportation and marketing of high sulphur content fuels in Africa. Every step was live-streamed on social media. These actions were sufficient to attract attention in Switzerland and in the ports zones of Amsterdam, Rotterdam and Antwerp, the ports of origin of most of the ‘African quality fuel’, kindling an ongoing debate on the proper policy response. For example, the Amsterdam City Council voted by a large motion to require the Municipal Executive – the owner of Amsterdam’s port – to negotiate a ban on export of fuels with a higher sulphur content than that allowed in Europe. This negotiation process is still underway. In Switzerland, however, it has been a struggle to turn general policy pronouncements into concrete action. The Swiss Federal Council has confirmed in response to a Green Party parliamentary inquiry that ‘companies should reduce the impacts of their operations on the health of the population as much as possible.’Footnote 9 However, the government has opposed efforts to enact binding measures in this regard, such as the popular initiative to require businesses to conduct due diligence and take human rights into account in all their operations worldwide.
In fact, the linkage between local and global has been taken even further: the African organizations and Public Eye have submitted a complaint to the United Nations Special Rapporteur on Toxic Wastes. The Special Rapporteur has the mandate to remind states of their obligations under international law and to call on them to comment on allegations against them.
III Next Steps
While the evidence is clear that African importing states, European exporting states, and European trading firms are failing in their obligations and responsibilities to fulfil and respect the right to health of the Africans who are affected by dirty fuels, the solutions are complex and will require concerted action by all stakeholders.
A Action at the National Level
Despite the pledge by five African countries to ban the importation of low-quality fuel, little progress has been made on the ground. Côte d’Ivoire, for example, would like to reform its sulphur content standards, but as noted above, its refineries lack the capacity to make higher-quality fuel, and upgrades to existing facilities would take years and money that the country lacks. The Association of African Refineries, which is the Ivoirian industry association, has announced a plan to finance and adapt its refineries to meet enhanced standards by 2020, but it is as yet unclear whether this plan will be put into effect. Most other West African countries are facing similar constraints, although the experience of Ghana, which has also announced a ban on high-sulphur fuels, may indicate an interim step towards meeting that goal. As the local refinery is currently only technically capable of producing diesel with a sulphur content of 1,000 to 1,500 p.p.m., Ghana’s National Petroleum authority has mandated that diesel should be imported with a sulphur content of 10 p.p.m. and mixed with the Ghanaian refinery’s diesel to create a 500 p.p.m. product. The national refinery’s production represents 15 per cent of national consumption; it has now committed to producing diesel at 50 p.p.m. by 2020.
One possible solution to this incremental, country-by-country strategy is a regional approach such as the one currently underway in East Africa. In 2013, at a meeting of Ministers for the East African Community, the nations of Kenya, Tanzania, Burundi, Rwanda and Uganda agreed to strengthen their standards on sulphur content from 500 to 50 p.p.m. This decision went into effect in January 2015. The East African experience demonstrates that regional blocs can create their own frameworks for regulating fuel quality, and that the additional costs of higher-quality fuel can be absorbed entirely by the importers or the trading companies themselves.
B Actions by Exporting Countries
Exporting states need to take firm steps to meet their international legal and human rights obligations to restrict the flow of toxic ‘African quality fuel’ to West Africa. A first step would be for the Port Authorities of Amsterdam, Rotterdam and Antwerp to engage with companies working in the gas and petroleum sectors in port areas to secure binding commitments that would prohibit the use of port facilities to produce, mix or export fuel with a sulphur content higher than that authorized in the EU. These three key ports could exercise their market power to establish a harmonized standard for the content of fuel products traded on the international stage. The ports must act in concert, though; even in Amsterdam (where, as noted above, the City Council has demanded that the port stop exporting high-sulphur fuels), authorities worry that an outright ban would drive business to their rivals, and some port officials suggest that their options are limited because they are not the owners of the fuels that are shipped through their facilities.
The European Commission could ban exports of dirty fuel to Africa for all of Europe. That body has, however, declined to intervene, based on the lack of an existing international legal framework for the sulphur content of petroleum products in international commerce and the general principle that European fuel exports to Africa must meet the standards of the importing countries.
C Actions by the International Community
The United Nations Environmental Program (UNEP) has been working in Africa for years to reduce the sulphur content in fuels. UNEP has conducted capacity building exercises with all actors in the fuel supply chain and given technical and financial assistance to refineries. It deserves a large measure of credit for the success of the East African initiative. The prevalence of other toxic contaminants, however, remains unaddressed, so commodities trading companies will be able to continue to take advantage of the weak controls on benzene, metals such as manganese, and PAH. Bilateral and international assistance should focus on strengthening these standards, and on helping West African nations to improve their refining capacity to produce low sulphur-content fuel.
D Actions by Companies
To meet their responsibility to respect human rights, all companies in the supply chain of fuels to Africa should conduct human rights due diligence on their role in the supply of high-sulphur fuel. Fuel exporters like Trafigura should stop producing, blending or exporting low-quality fuel, and should work to ensure that lower-sulphur fuel is available to African countries at affordable prices. Refineries should prioritize switching over to the refining of higher-quality fuel, and downstream fuel retailers should offer higher-quality fuels to African consumers. All supply chain actors should support national and regional policy initiatives to improve the quality of African fuels.
IV Conclusion
The consumption of dirty fuels that threaten public health is a human rights challenge for African states, for the Western countries that produce, market and export the fuels, and for donor countries alike. Companies that exploit the differences in sulphur content standards to market toxic fuels to poor countries are failing in their responsibility to respect the human right to health. In order to fulfil their citizens’ right to health, African countries are expected to establish effective regulatory mechanisms that minimize environmental hazards and prevent dangerous air pollution.Footnote 10 However – especially in light of the gross inequality in health status between developed and developing nations – the internationally recognized right to the highest attainable standard of health entails extraterritorial obligations as well.Footnote 11 Considering the challenges outlined above, exporting states are therefore expected to adopt policies and apply their laws to ensure that they are not undermining the right to health in other countries, and to prevent third parties (such as fuel trading firms) from doing so in their private operations.Footnote 12 One legal analysis even suggests that the Netherlands and Belgium are violating international law by allowing the export of dirty fuels to Africa.Footnote 13 As for developed countries in general, they are expected to promote lending and financing policies that protect the right to health through their membership in international financial institutions.Footnote 14
The Dirty Diesel campaign provides important lessons for the field of business and human rights. First and foremost, evidence-based campaigning supported by rigorous scientific proof can be an effective means to prompt the various actors that bear responsibility for human rights impacts to take that responsibility seriously. Second, for socio-economic rights that are subject to progressive realization, resource limitations in developing countries will always provide a convenient excuse for inaction; campaigns must find more effective ways of engaging the obligations of exporting and donor countries under international law. While campaigners have succeeded in putting the ‘African quality fuels’ issue on the public agenda and secured policy reform commitments from some West African countries, citizens of those countries have yet to see substantial changes in the air they breathe. All stakeholders – local governments, international partners and companies – will need to cooperate to mobilize the resources needed to bring those changes about.
