Table of Contents
2. Environmental Right and International Law
3. Environmental Right at the Regional Level
4. Environmental Right in Nigeria
5. Environmental Right in Other Jurisdictions
The constant degradation and pollution of the environment has stimulated both at the international and national level concerns as to its effect on the natural resources, wild life and human life. It has in fact been considered as the fourth generational right in the generational matrix due to the rising global issues of conversion of natural resources and safeguard of the environment. At the international scale, the United Nation in its sustainable development growth program has incorporated these environmental issues as part of its goals; climate action (Goal 13); life below water (Goal 14); life on land (Goal 15). At the regional and national level, environmental rights have been incorporated in the African charter and the 1999 constitution of Nigeria respectively. The vagueness of these provisions have made it's realisation slim in view of the difficulty the court would be faced with interpreting such provisions in line with the prevalent situations in Nigeria. This paper seeks to look at the provisions of international, regional, and national human right instruments that guarantees the right to clean and healthy environment and how they can be applied to enforce such right in Nigeria.
The need for a clean and healthy environment has been preached by nearly all NGO's in Nigeria as they seek to influence the implementation of the SDGs. The laws which are to achieve the guarantee of such right appears lifeless especially the provision that guarantees the right under Chapter 2 of the constitution which has been made non-justiciable by s.6(6)(c) of the constitution. How then would citizens be able to enforce the right to clean and healthy environment in view that the constitution has oust the jurisdiction of the court to entertain the matter? African charter has also been considered as an instrument to be used for the enforcement of the right to a healthy environment by virtue of its ratification and domestication into Nigerian legal frame work. As aptly put by Usman, "The mere existence of a law seeking to protect the environment does not automatically translate into environmental protection. Some laws are honoured more in breach than in compliance. For a law seeking to protect the environment to actually do so, it must be one that enjoys enforcement in the law courts through the instrumentality of litigation. If there's no such mechanism then the law, not minding how comprehensive and well coached it is, is nothing but a paper tiger."
This paper sets out to consider all the alternatives for the enforcement of the environmental right bringing into focus the various human right instruments both at the international and regional level.
2. Environmental Right and International Law
The issues of environmental right was not considered as one that could endanger human life by the United Nation in 1945 when the U.N. charter was signed by member states as the charter in its totality excludes the word 'environment'.
However the shift by the United Nation Organization from Millennium Development Growth to the fulfilment of sustainable development growth has imposed certain obligations on the state to fulfil, respect, promote and protect the goals stated in the program which bothers mostly on the need for a clean and healthy environment so that human life would not be endangered. The nexus between the condition of the human environment and the enjoyment of fundamental human rights was first acknowledged by the United Nations General Assembly towards the end of the 1960s. It was however not until 1972 during the United Nations Conference on Human Environment that the right to a healthy environment was the major topic of discussion at global stage which was a response by the U.N. to the experiences of citizens around the world to environmental degradation and destruction of natural resources. This tended towards the possibility of the constitutional recognition of the right by member states.
The right has however been acknowledged though not expressly guaranteed in several international human rights instrument like the universal declaration of human rights 1948, under article 25(1) which provides that “everyone has the right to a standard of living adequate for the health and well-being of himself and of his family..."The international covenant on economic social and cultural rights (ICESCR) under article 11(1) recognises the right to an adequate standard of living; Article 12(1) of the convenant guarantees the right to the enjoyment of the highest attainable standard of physical and mental health; Article 12(2)(b) of the covenant ensures the right to the improvement of all aspects of environmental and industrial hygiene. The committee on economic, social and cultural rights stated in its General comment on right to adequate food interpreted Article 11 of the Covenant to mean that the state must adopt food safety and other protective measures to prevent contamination through bad environmental hygiene. The Comment on the right of housing by the committee is to the effect that, housing should not be built on polluted sites nor in proximity to pollution sources that threaten the right to health of the inhabitants.
Also, the convention on the right of a child in its article 29(1)(e) ensures that the education of the child shall be directed towards the "development of respect for the natural environment.'' OAU Charter on the Rights and Welfare of the Child has a similar provision in its article XI (2)(g) provides that the education of every child shall be directed in such a manner as to “the development of respect for the environment and natural resources.”
International covenant on civil and political right (ICCPR) Article 27 provides that "members of minority groups shall not be denied the right, in community with other members of their group, to enjoy their own culture, to profess and practice their own religion, or to use their own language." The U.N. committee on human right has interpreted this provision in a broad manner, establishing culture manifests itself in many forms, including a particular way of life associated with the use of land resources, especially in the case of indigenous peoples. In its General comment on the CCPR, the committee noted that the state obligation to protect right to life include positive measures designed to reduce infant mortality and protect against malnutrition and epidemics. ...The protection of these rights is directed towards ensuring the survival and continued development of the cultural, religious and social identity of the minorities concerned, thus enriching the fabric of society as a whole. The committee also stated that the enjoyment of this right may require positive legal measures of protection and measures to ensure the effective participation of members of minority communities in decisions which affect them.
The communication of the International human right committee in EHP v. Canada , where a group of Canadian citizens alleged that the storage of radioactive waste near their homes threatened the right to life of present and future generations. The Committee found that the case raised serious issues with regard to the obligation of State parties to protect human life, but declared the case inadmissible due to failure to exhaust local remedies. Also, in Bordes and Temeharo v. France , the claimants asserted risk of harm from nuclear radiation. The Committee found the case inadmissible on the ground that the claimants did not qualify as a victims of a violation. The communication concerned France nuclear tests among the atolls of Mururoa and Fangataufa in the South Pacific. The Committee seemed concerned with the remoteness of the harm. Applicants claimed that the tests represented a threat to their right to life and their right not to be subjected to arbitrary interference with their privacy and family life. They attempted to place the burden of proof on the government, contending that French authorities had been unable to show that the tests would not endanger the health of the people living in the South Pacific or the environment by further damaging the geological structure of the atolls. The Committee held that the applicants had not substantiated their claim that the tests had violated or threatened violation with the rights invoked. As for their contention that the tests increased the likelihood of catastrophic accident, the Committee notes that this contention is highly controversial even in concerned scientific circles; it is not possible for the Committee to ascertain its validity or correctness. Thus, the lack of scientific certainty coupled with the burden of proof on the applicants, limited the claimants’ ability to obtain relief through human rights proceedings.
3. Environmental Right at the Regional Level
The Africa Charter on Human and Peoples right was adopted by the Organization of African Unity in 1981. It became part of the legal system in Nigeria by virtue of its ratification and domestication pursuant to s.12 of the constitution. It contains most of the ecosoc rights provided for under chapter 2 of the constitution. Scholarly opinion is to the effect that the charter can be used to enforce these ecosoc rights as there can be no conflict between the charter and the constitution in view that s.6(6)(c) of the constitution does not oust the jurisdiction of the court in enforcing those rights contained in the charter as that provision does not make reference to any other law than chapter 4 of the constitution. This opinion was upheld in the famous case of Fawehinmi v Abacha , per Ejiwumi JSC stated that "The Africa Charter on Human and Peoples’ Rights, having been passed into our municipal law, our domestic courts have certainly the jurisdiction to construe or apply the treaty. It follows then that anyone who felt that his rights as guaranteed or protected by the Charter, have been violated could well resort to its provisions to obtain redress in our domestic courts."
Article 24 of the African Charter on Human and Peoples’ Rights postulates that all people shall have the right to a general satisfactory environment suitable to their development. The charter does not recognise environmental right as an individual right but was a collective right. How then can this provision be used to guarantee the right to clean and healthy environment in Nigeria? The case in point is The Social and Economic Rights Action Center and the Center Economic, and Social Rights V. Federal Republic of Nigeria , before the African Commission on Human Rights where the provision was interpreted broadly to incorporate environmental protection.
The facts of which were, in March 1996, the petitioners filed a complaint alleging series of violations of human rights of the Ogoni people. The communication alleged that the Military Government of Nigeria had been directly involved in irresponsible oil development practices in the Ogoni region. In particular, the complaint expressed strongly the widespread contamination of soil, water and air; the destruction of homes; the burning of crops and killing of farm animals; and the climate of terror the Ogoni communities had been suffering of, in violation of their rights to health, a healthy environment, housing and food.
The Commission found the Nigerian Government and Multinational oil companies to have violated the rights of the people of Ogoniland to access clean water, food, good health and to adequate standard of living. The commission held that: “The right to a general satisfactory environment, as guaranteed under Article 24 of the African Charter or the right to a healthy environment, as it is widely known, therefore imposes clear obligations upon a government. It requires the State to take reasonable and other measures to prevent pollution and ecological degradation, to promote conservation, and to secure an ecologically sustainable development and use of natural resources….The right to enjoy the best attainable state of physical and mental health enunciated in Article 16(1) of the African Charter and the right to a general satisfactory environment favourable to development Article 16 (3)… already noted obligate governments to desist from directly threatening the health and environment of their citizens. The State is under an obligation to respect the just noted rights and this entails largely non-interventionist conduct from the State for example, not from carrying out, sponsoring or tolerating any practice, policy or legal measures violating the integrity of the individual…"
Also, in another environmental right case before the Economic Community of West African State Community Court of Justice, Socio-Economic Rights and Accountability Project (SERAP) v. Federal Republic Nigeria , it was contended that the lack of effective clean-up exercise of impacted sites had greatly aggravated the human rights and environmental degradation of the oil producing communities of the Niger Delta of Nigeria.
The Court in ordering the restoration of the impacted sites highlighted that the import of Article 24 of the African Charter was that every State must adopt appropriate measures to maintain the quality of the environment to the satisfaction of the human beings who live there and to enhance their sustainable development. The contention of Nigerian government to argue that the plaintiff’s claims were founded on mere policy directives under the country’s Constitution and consequently were not justiciable or enforceable was rejected by the ECOWAS court. The court noted that "…the sources of Law that the Court takes into consideration in performing its mandate of protecting Human Rights are not the Constitutions of Member States, but rather the international instruments to which these States voluntarily bound themselves at the international level, including the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights andthe African Charter on Human and Peoples’ Rights….once the concerned right for which the protection is sought before the Court is enshrined in an international instrument that is binding on a Member State, the domestic legislation of that State cannot prevail on the international treaty or covenant, even if it is its own Constitution."
The court concluded that, to justify a non-accountable government on the ground of unjusticiability of the right is completely baseless. The above cases show the manifestation of how the Africa charter could be used to enforce the right to clean and healthy environment.