Einde inhoudsopgave
Corporate Social Responsibility (IVOR nr. 77) 2010/9.2.4
9.2.4 African Human Rights Commission ruling
Mr. T.E. Lambooy, datum 17-11-2010
- Datum
17-11-2010
- Auteur
Mr. T.E. Lambooy
- JCDI
JCDI:ADS368281:1
- Vakgebied(en)
Ondernemingsrecht (V)
Voetnoten
Voetnoten
Articles 19-22 and 24 of the ACHPR. Article 21 provides the right to natural resources while Article 24 guarantees the 'right to a satisfactory environment favourable to their development'. On the right to self-determination of Peoples under the ACHPR, see: 'Katangese Peoples' Congress v. Zaire, African Commission on Human and Peoples' Rights', Comm. No. 75/92 (1995) where the AHRC recognised the right to exercise a variant of self-determination that was compatible with the sovereignty and territorial integrity of the country.
Articles 27-29 of the ACHPR. Shaw, supra note 86, p. 365. Included are duties to avoid compromising the security of the State and to preserve and strengthen social and national solidarity and independence.
Articles 45-59 of the ACHPR.
See: Articles 47-56 of the ACHPR and rule 88 of the ACHPR Rules of Procedure. There are annual activity reports from the AHRC on decisions on communications.
Rule 111(1) of the ACHPR Rules of Procedure. Shaw, supra note 86, p. 365. In addition, the African Court of Human and Peoples' Rights (Court) was established in 2004 having advisory, conciliatory and contentious jurisdiction. The AHRC, the State Parties and the African intergovernmental organisations have access to the Court. Under certain conditions, it also has jurisdiction over complaints of individuals or groups. See: Articles 5(3) and 34(6) of the Protocol to the ACHPR on the establishment of the Court. See also: A. Nollkaemper, Kern van het Internationaal Publiekrecht (Boom Juridische: The Hague 2005) pp. 421-422; Clapham (2006), supra note 61, p. 92.
African Human Rights Commission, Social and Economic Rights Action Center/Center for Economic and Social Rights v. Nigeria, ACHPR/COMM/A044/1 (27 May 2002), § 2. The Communication and the decision of the AHRC are available on: CESR, Nigeria, see: http:// cesr.org/nigeria, accessed on 28 June 2010.
SERAC/CESR v. Nigeria, § 54. See: Clapham (2006), supra note 61, pp. 434-435; Jägers, supra note 65, p. 157.
SERAC/CESR v. Nigeria, § 58.
SERAC/CESR v. Nigeria, §§ 59-67. See: F. Coomans, 'The Ogoni Case Before The African Commission on Human and Peoples' Rights',in International and Comparative Law Quarterly, 4(8), 2003, pp. 749-760. He draws attention to a Note verbale 127/2000 submitted in October 2000 to the AHRC by the Nigerian Government. The then new President Obasanjo admitted that 'there is no denying that a lot of atrocities were and are still being committed by the oil companies in Ogoniland and indeed in the Niger Delta area'.
SERAC/CESR v. Nigeria, § 69.
30th Ordinary Session, held in Banjul, The Gambia, 13-27 October 2001.
SERAC/CESR v. Nigeria, in fine. Information confirming the implementation of the said recommendations other than on the Niger Delta Development (see: section 9.4) has not been found.
Jägers, supra note 65, p. 219.
Clapham (2006), supra note 61, p. 434.
The ACHPR is one of the most modern regional human rights treaties. Besides the traditional civil and political rights and economic, social and cultural rights, it also includes 'modern' human rights such as various 'peoples' rights': the right to self-determination, development and a generally satisfactory environ-ment.1 The ACHPR is also the first human rights charter that specifies the duties of individuals to the State, society and family.2
Part 2 of the ACHPR empowers the AHRC with a very wide and general mandate, including interpreting the ACHPR and investigation.3 It may hear inter-state complaints and can receive communications from individuals and groups containing complaints against States.4 Although the AHRC does not
have the power to render binding sentences, it can issue recommendations to States and suggest provisional measures where appropriate.5
In 1996, a communication was submitted to the AHRC by the Lagos-based Social and Economic Rights Action Centre (SERAC) and the New York-based Centre for Economic and Social Rights (CESR) against the government of General Abacha. The communication alleges that the oil consortium, including NNPC and SPDC, has exploited oil reserves in Ogoniland with no regard for the health or environment of the local communities in violation of international environmental standards. It added that the consortium neglected to maintain its facilities causing numerous avoidable oil spills around the villages.6
An important aspect in this case was NNPC's active involvement in the oil joint venture. The petitioners of the communication maintained that the State was directly responsible for the allegations against the joint venture company. This aspect is of interest considering that there is no communis opinio on the position of State companies under the international human rights regimes.7 Based on article 21 of the ACHPR, the AHRC noted:
despite its obligation to protect persons against interferences in the enjoyment of their rights, the Government of Nigeria facilitated the destruction of the Ogoniland. Contrary to its Charter obligations and despite such internationally established principles, the Nigerian Government has given the green light to private actors, and the oil Companies in particular, to devastatingly affect the well-being of the Ogoni.8
In discussing the merits of the case, the AHRC: (i) emphasised the need to protect individuals from non-state actors with regard to the right to housing; (ii) found that the right to food was implicit in the ACHPR and stressed that the Government "should not allow private parties to destroy or contaminate food sources"; and (iii) referred to violations by private actors in the context of its
finding of a violation of the right to life and integrity of the person.9 Moreover, it commented on the impact of corporate led globalisation in developing countries by stating: "The intervention of multinational companies may be a potentially positive force for development if the State and the people are ever mindful of the common good and the sacred rights of individuals and communities .10
Finally, the AHRC found the Nigerian Government in violation of the ACHPR for the period 1993-1996 based on the rights to non-discrimination (artice 2), life (artcle 4), property (artile 14), health (rtcle 16), family life (article 18(1)), the environment (artcle 24), and the rights of people to "freely dispose over their wealth and natural resources (article 21).11 The AHRC appealed to the Government to ensure protection of the environment, health and livelihood of the Ogoni by, amongst others: (i) stopping all attacks by the RSISTF; (ii) conducting an investigation into the said human rights violations; prosecuting officials of the security forces, NNPC and relevant agencies involved in the violations; (iii) ensuring compensation to the victims; (iv) ensuring appropriate environmental and social impact assessments for any future oil development and the safe operations of any further oil development; and (v) providing information on health and environmental risks and meaningful access to regulatory and decision making bodies to communities likely to be affected by oil operations.12
The regional human rights system of Africa does not provide for a mechanism where private parties can be held directly accountable for human rights violations.13 However, this decision shows that the AHRC acknowledged that economic, social and cultural rights can be threatened by the behaviour of multinational companies.14 In addition, it should be noted that collective rights concerning natural resources were successfully claimed by the Ogoni.