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Decision Regarding Communication 155/96 (Social and Economic Rights Action Center/Center for Economic and Social Rights v. Nigeria)

Published online by Cambridge University Press:  27 February 2017

Dinah Shelton
Dinah Shelton*
Affiliation:
Notre Dame Law School
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Type
International Decisions
Information
American Journal of International Law , Volume 96 , Issue 4 , October 2002 , pp. 937 - 942
Copyright
Copyright © American Society of International Law 2002

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References

1 June 27, 1981, OAU Doc. CAB/LEG/67/3 rev. 5, reprinted in 21 ILM 58 (1982) (entered into force Oct. 21, 1986). The Commission’s communication procedure is described in Articles 46 through 59 of the Charter.

The University of Minnesota Human Rights Library maintains an online African Human Rights Resource Center at <http://www.umn.edu/humanrts/africa/>, where the African Charter and extensive materials on the Commission, including the instant decision and the original Communication, can be found. The Commission’s home page is at <http://www.achpr.org>. The name for the region of Nigeria discussed in the Commission’s decision has several variant spellings; for consistency, “Ogoniland” is used throughout this case Report.

2 Decision Regarding Communication 155/96 (Social and Economic Rights Action Center/Center for Economic and Social Rights v. Nigeria), Case No. ACHPR/COMM/A044/1 (Afr. Comm’n Hum. & Peoples’ Rts. May 27, 2002), at <http://www.umn.edu/humanrts/africa/comcases/allcases.html> [hereinafter Decision].

3 Id., para. 49.

4 The government stated that “there is no denying the fact that a lot of atrocities were and are still being committed by the oil companies in Ogoniland and indeed in the Niger Delta area.” Note verbale, Reference No. 127/2000, quoted in Decision, supra note 2, para. 42.

5 Decision, supra note 2, para. 67.

6 Id., para. 41 (citing Constitution (Suspension and Modification) Decree 1993 (Nigeria)).

7 Id., para. 37.

8 Id., para. 38.

9 Id., para. 44 (citing Asbjørn, Eide, Economic, Social and Cultural Rights as Human Rights, in Economic, Social and Cultural Rights: A Textbook 21 (Asbjørn, Eide, Krause, Catarina, & Rosas, Allan eds., 1995)Google Scholar [hereinafter Economic, Social and Cultural Rights] ).

10 Id., para. 45.

11 Id.

12 Id., para. 46.

13 Id.

14 Id., para. 47 (citing Eide, supra note 9, at 38).

15 Id., para. 48.

16 Id., para. 49. The African Charter provides that the Commission shall draw inspiration from international law on human and peoples’ rights, including the Universal Declaration of Human Rights and other UN instruments, the instruments of specialized agencies, and, as subsidiary measures to determine the principles of law, other general or special international conventions, African practices consistent with international norms on human and peoples’ rights, general principles of law, and legal precedents and doctrine. African Charter on Human and Peoples’ Rights, supra note 1, Arts. 60, 61.

17 Decision, supra note 2, para. 51 (quoting Kiss, Alexandre, Concept and Possible Implications of the Right to Environment, in Human Rights in The Twenty-First Century: A Global Challenge 551, 553 (Mahoney, Kathleen & Mahoneyeds, Paul., 1993)Google Scholar).

18 Id. (citing UN Committee on Economic, Social and Cultural Rights, General Comment No. 14: The Right to the Highest Attainable Standard of Health, UN Doc. E/C.12/2000/21 (2000)).

19 Id., para. 52.

20 Id., para. 53.

21 Id., para. 55.

22 On this point, the Commission cites, id., para. 57, not only its own decision in Commission National? des Droits de. l’ Homme et des Liberies de la Federation Nationale des Unions de Jeunes Avocats de France v. Chad, Communication No. 74/92, Ninth Activity Report 1995-1996, Annex VIII (African Comm’n Hum. & Peoples’ Rts.), reprinted m Documents of the African Commission on Human and Peoples’ Rights 449 (Rachel Murray & Malcolm Evans eds., 2001), but also jurisprudence of other human rights bodies: Velásquez Rodríguez v. Honduras, Inter-Am. Ct. H.R. (ser. C) No. 4 (1988), and X & Y v. Netherlands, 91 Eur. Ct. H.R. (ser. A) at 32 (1985).

23 Decision, supra note 2, para. 58.

24 Id., para. 60. The African Charter recognizes the right to property in Article 14 (“The right to property shall be guaranteed. It may only be encroached upon in the interest of public need or in the general interest of the community and in accordance with the provisions of appropriate laws.”), the right to health in Article 16 (“Every individual shall have the right to enjoy the best attainable state of physical and mental health.”), and the duty of the state to protect the family in Article 18(1) (“The family shall be the natural unit and basis of society. It shall be protected by the State . . . .”).

25 Decision, supra note 2, para. 61 (citing Leckie, Scott, The Right to Housing, in Economic, Social and Cultural. Rights, supra note 9, at 107, 113)Google Scholar.

26 Id., para. 63. The Commission used the definition of forced evictions developed by the UN Committee on Economic, Social and Cultural Rights in its General Comment No. 7: The Right to Adequate Housing, UN Doc.E/C. 12/1997/4 (1997) (forced evictions defined as “the permanent removal against their will of individuals, families, and/or communities from the homes which they occupy, without the provision of, and access to, appropriate forms of legal or other protection”).

27 Decision, supra note 2, para. 62.

28 Id., para. 63 (citing UN Committee on Economic, Social and Cultural Rights, General Comment No. 4: The Right to Adequate Housing, UN Doc. E/C.12/1991/4 (1991)).

29 Id., para. 65.

30 Id., para. 67.

31 Id.

32 Id., para. 68.

33 Subsequently, as an extension of the American Convention on Human Rights, Nov. 22,1969,1144 UNTS 123 (entered into force July 18, 1978), the Organization of American States adopted the Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights, Nov. 17,1988, OASTS No. 69, 28 ILM 156 (1989) (entered into force Nov. 16,1999). The Protocol guarantees the right to a healthy environment in Article 11 (“ (1) Everyone shall have the right to live in a healthy environment and to have access to basic public services. (2) The States Parties shall promote the protection, preservation, and improvement of the environment.”). Article 11 is not, however, one of the rights in the Protocol that is subject to the petition procedure established by the American Convention. Neither the European Convention on Human Rights nor United Nations human rights instruments contain a right to environment. See Shelton, Dinah, Environmental Rights, in Peoples’ Rights 185 (Alston, Philip ed., 2001)Google Scholar.

34 This process of referring to the decisions of other human rights bodies is expressly authorized by the Charter. See supra note 16.

35 In cases where human rights instruments do not include a specific “right to environment,” see supra note 33 and accompanying text, courts may nevertheless hold that existing environmental conditions violate other rights. See Shelton, supra note 33. The European Court of Human Rights, for example, has held that environmental harm can be a breach of the right to privacy, home, and family life, guaranteed by Article 8 of the European Convention on Human Rights (Convention for the Protection of Human Rights and Fundamental Freedoms, Nov. 4, 1950, ETS No. 5, 213UNTS222). See Desgagne, Richard, Integrating Environmental Values into the European Convention on Human Rights, 89 AJIL 263 (1995)Google Scholar.

36 Decision, supra note 2, para. 51 (quoting Kiss, supra note 17, at 553); see supra text accompanying note 17.

37 The Inter-American Commission on Human Rights has adopted a similar approach in the context of countrywide studies of the human rights performance of OAS member states. See Inter-Am. Comm’n on Hum. Rts., Report on the Situation of Human Rights in Ecuador, OAS Doc. OEA/Ser.L/V/II.96, doc. 10, rev. 1 (1997); Inter-Am. Comm’n on Hum. Rts., Report on the Situation of Human Rights in Brazil, OAS Doc. OEA/Ser.L/V/II.97, doc. 29, rev. 1 (1997).

38 28 U.S.C. §1350(1994).

39 Wiwa v. Royal Dutch Petroleum Co., 226 F.3d 88 (2d Cir. 2000), cert, denied, 532 U.S. 941 (2001).

40 Wiwa v. Royal Dutch Petroleum Co., 96 Civ. 8386 (KMW), 2002 U.S. Dist. LEXIS 3293 (S.D.N.Y. Feb. 22, 2002).