Abstract
Despite the scarce jurisprudence, African regional courts and tribunals have contributed significantly to the development of international environmental law by better linking environmental protection and human rights, strengthening the content of the duty of due diligence and shaping proactive environmental remedies. The African Commission and Court of Human and Peoples’ Rights, the Court of Justice of the Economic Community of West African States and the Court of Justice of the East African Court of Justice are the most progressive and innovative adjudicatory mechanisms in terms of environmental jurisprudence within the Africa. In contributing to the development of international environmental law, these courts and tribunals engaged in cross-fertilization with other universal or regional courts.
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Notes
- 1.
ICJ, Gabčíkovo-Nagymaros Project (Hungary v Slovakia), Judgment, 25 September 1997, ICJ Reports 1997, Separate Opinion of Vice-President Weeramantry, p. 98. On this opinion, see Mbengue 2020b.
- 2.
In reality, the Manden Charter was never adopted as a formal written text since African societies at that time were still using the oral tradition. The Manden Charter has been transcribed on the basis of the knowledge shared by traditional griots.
- 3.
UNESCO 2014, p. 39.
- 4.
Ogundere 1972, pp. 258–260.
- 5.
- 6.
The Convention Designed to Ensure Conservation of Various Species of Wild Animals in Africa Which are Useful to Man or Inoffensive, 19 May 1900, British Parliamentary Papers 1900, pp. 825–837.
- 7.
Maluwa 1989, pp. 650–655.
- 8.
Such species were listed in Schedule V of the Convention.
- 9.
Takang 2014, p. 168.
- 10.
Convention Relative to the Preservation of Fauna and Flora in Their Natural State, 8 November 1933, 172 LNTS 241, entered into force 14 January 1936.
- 11.
- 12.
To borrow the expression of the International Court of Justice (ICJ) in Gabčíkovo-Nagymaros Project (Hungary v Slovakia), above n 1, p. 41, para 53.
- 13.
International Convention for the Regulation of Whaling, 2 December 1946, 161 UNTS 72, entered into force 10 November 1948.
- 14.
ICJ, Whaling in the Antarctic (Australia v Japan: New Zealand intervening), Judgment, 31 March 2014, ICJ Reports 2014, p. 226, para 43.
- 15.
Preamble, para 7. Emphasis added.
- 16.
Charter of the Organization of African Unity (OAU) Charter, 25 May 1963, 479 UNTS 39, entered into force 13 September 1963.
- 17.
African Convention on the Conservation of Nature and Natural Resources, 15 September 1968, 1001 UNTS 3, entered into force 16 June 1969.
- 18.
See, e.g., the Iron Rhine Tribunal which explicitly traced back the birth of international environmental law to the 1972 Stockholm Conference on the Human Environment: ‘Since the Stockholm Conference on the Environment in 1972 there has been a marked development of international law relating to the protection of the environment’. See Iron Rhine Arbitration (Belgium/Netherlands), Decision, 24 May 2005, 23 RIAA 35, p. 66, para 59.
- 19.
African Charter for the Protection and Conservation of Nature, Commission for Technical Co-operation in Africa South of the Sahara, 18th Session, 4–9 February 1963 (CCTA-CSA Pub).
- 20.
Maluwa 1989, pp. 650–655.
- 21.
African Convention on the Conservation of Nature and Natural Resources, above n 18, Preamble.
- 22.
Takang 2014, p. 168.
- 23.
Iron Rhine Arbitration (Belgium/Netherlands), above n 19, p. 66, para 59.
- 24.
Mackenzie et al. 2010, pp. 387–414.
- 25.
African Charter on Human and Peoples’ Rights, 27 June 1981, 1520 UNTS 217, entered into force 21 October 1986.
- 26.
Ibid., Article 24.
- 27.
That right was first enunciated in the Stockholm Declaration: United Nations General Assembly 1972, Resolution on Development and Environment, UN Doc A/RES/2849 (XXVI) (Stockholm Declaration), Principle 1: ‘Man has the fundamental right to freedom, equality and adequate conditions of life, in an environment of a quality that permits a life of dignity and well-being, and he bears a solemn responsibility to protect and improve the environment for present and future generations.’
- 28.
Ankumah 1996, p. 24 and p. 74.
- 29.
Harrington 2002, p. 307.
- 30.
Thompson 1993, p. 744.
- 31.
Onwuka and Sesay 1985, p. 220.
- 32.
Lagos Plan of Action for Development of Africa (1980), available at: https://www.resakss.org/node/6653. Accessed 21 July 2020.
- 33.
Treaty Establishing the African Economic Community, 3 June 1991, entered into force 12 May 1994, available at: https://au.int/en/treaties/treaty-establishing-african-economic-community. Accessed 21 July 2020.
- 34.
Arab Maghreb Union (AMU) Treaty, 17 February 1989, 1546 UNTS 151, entered into force 1 July 1989.
- 35.
Treaty establishing the Common Market for Eastern and Southern Africa (COMESA), 5 November 1993, 2314 UNTS 265, entered into force 8 December 1994.
- 36.
Community of Sahel-Saharan States (CEN-SAD) Treaty, 3 February 1998, revised in 2013, available at: http://extwprlegs1.fao.org/docs/pdf/Mor178294.pdf. Accessed 21 July 2020.
- 37.
Treaty for the establishment of the East African Community (EAC), 30 November 1999, 2144 UNTS 255, entered into force 7 July 2000.
- 38.
Treaty establishing the Economic Community for Central African States (ECCAS), 18 October 1983, entered into force 18 December 1984, available at: https://www.wipo.int/edocs/lexdocs/treaties/en/eccas/trt_eccas.pdf. Accessed 21 July 2020.
- 39.
Economic Community of West African States (ECOWAS) Treaty, 28 May 1975, 1010 UNTS 17, provisionally entered into force 28 May 1975. Revised in 1993.
- 40.
Agreement establishing the Intergovernmental Authority on Development (IGAD), 21 March 1996, IGAD/SUM-96/AGRE-Doc.
- 41.
Declaration and Treaty of the Southern African Development Community (SADC), 17 August 1992, entered into force 5 October 1993.
- 42.
The details for the operation of the Court were established by the 1991 Protocol on the ECOWAS Community Court of Justice.
- 43.
Protocol on Tribunal in the Southern African Development Community, 7 August 2000, entered into force 14 August 2011, available at: https://www.sadc.int/files/1413/5292/8369/Protocol_on_the_Tribunal_and_Rules_thereof2000.pdf. Accessed 21 July 2020.
- 44.
- 45.
SADC Agreement Amending the Protocol on Tribunal, 7 July 2019, available at: https://www.sadc.int/files/3515/6525/8317/Agreement_Amending_the_Protocol_on_the_Tribunal_-_2007_-_English.pdf. Accessed 21 July 2020.
- 46.
Protocol A7P.1/7/91 on the Community Court of Justice (1991), available at: http://prod.courtecowas.org/wp-content/uploads/2018/11/Protocol_AP1791_ENG.pdf. Accessed 21 July 2020.
- 47.
The concept of ‘primary law’ refers to the constitutive instruments of the RECs. The concept of ‘derived law’ relates to specific conventional instruments adopted by the RECs after their establishment.
- 48.
SADC Treaty, above n 43, Article 5(1)(a), (last amended in 2015).
- 49.
Revised ECOWAS Treaty, above n 41, Article 3(2)(k), (2010).
- 50.
EAC Treaty, above n 39, Preamble and Article 5(3)(a), (1999).
- 51.
Revised Treaty of the CEN-SAD, above n 38, Article 3, (2013).
- 52.
Agreement Establishing the IGAD, above n 42, Article 7(1)(e), (1996).
- 53.
Agreement establishing the World Trade Organization, 15 April 1994, 1867 UNTS 154, 1 January 1995.
- 54.
General Agreement on Tariffs and Trade, 30 October 1947, 55 UNTS 187, entered into force 1 January 1948.
- 55.
See Preamble of the Agreement establishing the WTO (1994) : ‘Recognizing that their relations in the field of trade and economic endeavour should be conducted with a view to raising standards of living, ensuring full employment and a large and steadily growing volume of real income and effective demand, and expanding the production of and trade in goods and services, while allowing for the optimal use of the world's resources in accordance with the objective of sustainable development, seeking both to protect and preserve the environment (…)’. Emphasis added.
- 56.
Rio Declaration on Environment and Development (1992), Annex 1 of Report of the UN Conference on Environment and Development, Rio de Janeiro, 3–14 June 1992, UN Doc. A/CONF.151/26/Rev.l (Vol l) (Rio Declaration).
- 57.
See Principle 3 of the Rio Declaration: ‘The right to development must be fulfilled so as to equitably meet developmental and environmental needs of present and future generations.’
- 58.
Rio + 20, United Nations Conference on Sustainable Development (2012), UN Doc A/RES/66/288, para 2.
- 59.
Agreement Establishing the IGAD, above n 42, Article 7(e).
- 60.
SADC Treaty, above n 43, Article 5 (last amended in 2015).
- 61.
Revised ECOWAS Treaty, above n 41, Article 3(2)(a).
- 62.
This is a definition that goes beyond the one retained by certain international courts and tribunals. See for instance the Iron Rhine Tribunal’s definition: ‘the Tribunal notes that in all of these categories ‘environment’ is broadly referred to as including air, water, land, flora and fauna, natural ecosystems and sites, human health and safety, and climate’.
- 63.
EAC Protocol on Environment and Natural Resources Management, 3 April 2006, available at: www.eac.int/documents/EAC_protocol_on_enviro_and_natural_res_mgt.pdf Accessed 21 July 2020.
- 64.
UN Doc A/73/419* (2018), para 72.
- 65.
ECOWAS Supplementary Act A/SA.3/12/08 adopting community rules on investment and the modalities for their implementation with ECOWAS (2008).
- 66.
Ibid., Article 12.
- 67.
The ECOWAS Common Investment Code (ECOWIC) (2018), available at: https://nipc.gov.ng/wp-content/uploads/2019/12/ecowiccode.pdf Accessed 21 July 2020.
- 68.
Ibid., Article 21, para 3: ‘The Member States further recognise that it is unlawful under this Code to encourage investment by relaxing national health, safety, or environmental measures. Accordingly, no Member State shall waive or otherwise derogate from, or offer to waive or otherwise derogate from, such measures as an encouragement for the establishment, acquisition, expansion, or retention of an investment in its national territory.’
- 69.
Ibid., Article 23, para 1: ‘The Member States recognise that multilateral environmental agreements to which they are a party play a strategic role, globally, regionally, and nationally, in protecting the natural environment, and that their respective implementation of these agreements is critical to achieving the environmental objectives of these agreements. Each Member State affirms its commitment to implement in its national territory the multilateral environmental agreements to which it is a party.’
- 70.
Ibid., Articles 24 and 25.
- 71.
Investment Agreement for the COMESA Common Investment Area (CCIA) (2017), available at: https://www.comesa.int/wp-content/uploads/2019/04/COMESA-Gazette-Volume-21-Final_upload_web.pdf. Accessed 21 July 2020.
- 72.
Ibid., Article 31, para 5.
- 73.
ACHR, African Commission on Human and People’s Rights v Republic of Kenya, Judgment, 26 May 2017, App No 006/2012, para 277 (the Ogiek case).
- 74.
ECOWAS Court of Justice, Socio-economic Rights and Accountability Project (SERAP) v Nigeria, Ruling, December 2010, ECW/CCJ/APP/08/09, paras 75–79.
- 75.
ACHPR, Social and Economic Rights Action Centre (SERAC) and the Centre for Economic and Social Rights (CESR) v Nigeria, 27 October 2001, No 155/96, para 52 (the Ogoni case).
- 76.
On this point, see Mbengue and Waltmann 2018, pp. 222–223.
- 77.
ACHPR, Social and Economic Rights Action Centre (SERAC) and the Centre for Economic and Social Rights (CESR) v Nigeria, above n 78, para 51.
- 78.
According to Prof. Kiss: ‘an environment degraded by pollution and defaced by the destruction of all beauty and variety is as contrary to satisfactory living conditions and the development as the breakdown of the fundamental ecologic equilibria is harmful to physical and moral health.’ See ACHPR, Social and Economic Rights Action Centre (SERAC) and the Centre for Economic and Social Rights (CESR) v Nigeria, above n 78, para 51.
- 79.
ICJ, Gabčíkovo-Nagymaros Project (Hungary v Slovakia), above n 1, p. 41, para 53.
- 80.
WTO, United States—Import Prohibition of Certain Shrimp and Shrimp Products, Appellate Body Report, 12 October 1998, WTO/DS58/AB/R, (US—Shrimp (Appellate Body Report)), para 129.
- 81.
ACHPR, Social and Economic Rights Action Centre (SERAC) and the Centre for Economic and Social Rights (CESR) v Nigeria, above n 78, para 53.
- 82.
Ibid., para 69.
- 83.
See Principle 10 of the 1992 Rio Declaration on Environment and Development: ‘Environmental issues are best handled with the participation of all concerned citizens, at the relevant level. At the national level, each individual shall have appropriate access to information concerning the environment that is held by public authorities, including information on hazardous materials and activities in their communities, and the opportunity to participate in decision-making processes. States shall facilitate and encourage public awareness and participation by making information widely available. Effective access to judicial and administrative proceedings, including redress and remedy, shall be provided.’
- 84.
ICJ, Gabčíkovo-Nagymaros Project (Hungary v Slovakia), above n 1, p. 41, para 140.
- 85.
ICJ, Pulp Mills on the River Uruguay, (Argentinia v Uruguay), Judgment, 20 April 2010, ICJ Reports 2010, p. 14.
- 86.
The Environment and Human Rights (State Obligations in Relation to the Environment in the Context of the Protection and Guarantee of the Rights to Life and to Personal Integrity—Interpretation and Scope of Articles 4(1) and 5(1) of the American Convention on Human Rights), Advisory Opinion OC-23/18, 15 November 2017, IACtHR Ser. A, No 23, para 61.
- 87.
ACHPR, Centre for Minority Rights Development (Kenya) and Minority Rights Group International on behalf of Endorois Welfare Council v Kenya, Decision, 4 February 2010, Comm No 276/2003, para 152. Hereinafter the Endorois case.
- 88.
UN Doc A/73/419* (2018), para 102: ‘There are important deficiencies with respect to principles of international environmental law, in particular with respect to their content and legal status. There are instances where there is no clarity as to the nature and content of a principle, or no judicial consensus as to its applicability, or no recognition in binding legal instruments, or all of the above. The degree of legal uncertainty surrounding many of these principles has a direct and indirect impact on the predictability and implementation of sectoral environmental regimes. Some principles, such as access to information, participation in decision-making and access to justice, have only regional application. Others, such as a right to a clean and healthy environment and the principles of non-regression and progression, have only recently, and only in a limited number of legal instruments, been recognized and have not yet been fully developed […]’.
- 89.
ACHR, African Commission on Human and People’s Rights v Republic of Kenya, above n 76, para 7.
- 90.
Ibid., para 220.
- 91.
Ibid., para 130.
- 92.
ECOWAS Court of Justice, Socio-economic Rights and Accountability Project (SERAP) v Nigeria, above n 77, para 7.
- 93.
African Charter on Human and Peoples’ Rights, above n 26, para 19(a).
- 94.
Ibid., para 19(d).
- 95.
ECOWAS Court of Justice, Socio-economic Rights and Accountability Project (SERAP) v Nigeria, above n 77, para 55.
- 96.
Ibid.
- 97.
Ibid., para 56.
- 98.
Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters, 25 June 1998, 2161 UNTS 447, entered into force 30 October 2001 (Aarhus Convention).
- 99.
ECOWAS Court of Justice, Socio-economic Rights and Accountability Project (SERAP) v Nigeria, above n 77, para 57.
- 100.
Ibid., para 58.
- 101.
Convention on Environmental Impact Assessment in a Transboundary Context (UNECE), 25 February 1991, 1989 UNTS 309, entered into force 19 September 1997.
- 102.
ICJ, Pulp Mills on the River Uruguay, (Argentinia v Uruguay), above n 88, para 205.
- 103.
According to ECOWAS Court of Justice, Socio-economic Rights and Accountability Project (SERAP) v Nigeria, above n 77, para 73: ‘the lack of jurisdiction of the Court on individuals sued for human rights violation applies entirely in the cases, as the instant, where the alleged perpetrators of the violation are other non-state actors like corporations. Neither individuals nor corporations are parties to the treaties that the international Tribunal with jurisdiction over human rights are empowered to enforce’. In more recent years, some international courts and tribunals have been more progressive with the international subjectivity of corporations and their accountability under international law, see for instance, Urbaser S.A. and Consorcio de Aguas Bilbao Bizkaia, Bilbao Biskaia Ur Partzuergoa v The Argentine Republic, Award, 8 December 2016, ICSID Case No ARB/07/26, para 1195: ‘The Tribunal may mention in this respect that international law accepts corporate social responsibility as a standard of crucial importance for companies operating in the field of international commerce. This standard includes commitments to comply with human rights in the framework of those entities’ operations conducted in countries other than the country of their seat or incorporation. In light of this more recent development, it can no longer be admitted that companies operating internationally are immune from becoming subjects of international law. On the other hand, even though several initiatives undertaken at the international scene are seriously targeting corporations human rights conduct, they are not, on their own, sufficient to oblige corporations to put their policies in line with human rights law. The focus must be, therefore, on contextualizing a corporation’s specific activities as they relate to the human right at issue in order to determine whether any international law obligations attach to the non-State individual.’
- 104.
ECOWAS Court of Justice, Socio-economic Rights and Accountability Project (SERAP) v Nigeria, above n 77, para 71.
- 105.
See ICJ, Nuclear Tests (Australia v France), Judgment, ICJ Reports 1974, p. 253, para 29.
- 106.
See Permanent Court of Arbitration, Dispute Concerning Coastal State Rights in the Black Sea, Sea of Azov, and Kerch Strait (Ukraine v the Russian Federation), Preliminary Objections, 21 February 2021, para 151: ‘However, it is ultimately for the Arbitral Tribunal itself to determine on an objective basis the nature of the dispute dividing the Parties by ‘[isolating] the real issue in the case and [identifying] the object of the claim’.
- 107.
ECOWAS Court of Justice, Socio-economic Rights and Accountability Project (SERAP) v Nigeria, above n 77, para 100.
- 108.
ICJ, Pulp Mills on the River Uruguay, (Argentina v Uruguay), above n 88, para 187.
- 109.
ITLOS, Responsibilities and obligations of States with respect to activities in the Area, Advisory Opinion, 1 February 2011, ITLOS Reports 2011, p. 10, para 111.
- 110.
ECOWAS Court of Justice, Socio-economic Rights and Accountability Project (SERAP) v Nigeria, above n 77, para 109 (emphasis added).
- 111.
Ibid., para 110.
- 112.
ECOWAS Court of Justice, Socio-economic Rights and Accountability Project (SERAP) v Nigeria, Judgment, December 2012, ECW/CCJ/JUD/18/12, para 105.
- 113.
Ibid., para 109.
- 114.
Ibid.
- 115.
See, for instance, the approach of the ICJ in Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v Nicaragua) and Construction of a Road in Costa Rica along the San Juan River (Nicaragua v Costa Rica), Judgment, ICJ Reports 2015, p. 665, para 228: ‘the Court notes that Costa Rica has begun mitigation works in order to reduce the adverse effects of the construction of the road on the environment. It expects that Costa Rica will continue to pursue these efforts in keeping with its due diligence obligation to monitor the effects of the project on the environment. It further reiterates the value of ongoing co-operation between the Parties in the performance of their respective obligations in connection with the San Juan River.’
- 116.
Expression borrowed from WTO case-law. See for instance Brazil—Measures affecting Import of Retreated Tyres, Panel Report, 12 June 2007, WT/DS332/R, para 7.210.
- 117.
Inter-American Court of Human Rights, above n 89, para 125.
- 118.
EACJ, Africa Network for Animal Welfare (ANAW) v The Attorney General of the United Republic of Tanzania, Appeal Judgment No 3, 2012, p. 13.
- 119.
EACJ, Africa Network for Animal Welfare (ANAW) v The Attorney General of the United Republic of Tanzania, First Instance Judgment No 9, 20 June 2014, para 15.
- 120.
EACJ, Africa Network for Animal Welfare (ANAW) v The Attorney General of the United Republic of Tanzania, above n 121, p. 8.
- 121.
Ibid., pp. 10–11.
- 122.
EAC Treaty, above n 39, Articles 5(2) and (3); 8(1) (c); 111(1) (d); 111(2); 112(1) and (2); and 114(1).
- 123.
EACJ, Africa Network for Animal Welfare (ANAW) v The Attorney General of the United Republic of Tanzania, above n 121.
- 124.
Ibid., p. 11.
- 125.
EACJ, Africa Network for Animal Welfare (ANAW) v The Attorney General of the United Republic of Tanzania, above n 122, para 15; Convention on Biological Diversity, 5 June 1992, 1760 UNTS 79, entered into force 29 December 1993.
- 126.
EACJ, Africa Network for Animal Welfare (ANAW) v The Attorney General of the United Republic of Tanzania, above n 122, para 30.
- 127.
Ibid., para 48.
- 128.
It is interesting to note that the Appellate Division of the EAC Court of Justice went a bit further in its judgment on the merits (after the judgment of the First Instance Division was appealed by Tanzania) and qualified certain principles contained in those conventions as reflecting general principles of law in the meaning of Article 38.1c) of the Statute of the ICJ: ‘But even if the Trial Court had in fact considered aspects of these International Instruments (as otherwise alleged by the Appellant) we, for our part, would not have been unduly alarmed. By being signatories to these other International Conventions and Declarations, the EAC Partner States, do subscribe to the various standards, norms and values of those Conventions—which standards, norms and values are also gleaned from the general principles of law recognized by the comity of Nations (…)’; EACJ, Africa Network for Animal Welfare (ANAW) v The Attorney General of the United Republic of Tanzania, above n 122, para 48. On environmental principles as general principles of law, see Mbengue and McGarry 2019, pp. 408–441.
- 129.
EACJ, Africa Network for Animal Welfare (ANAW) v The Attorney General of the United Republic of Tanzania, above n 122, para 75.
- 130.
Ibid., para 68.
- 131.
- 132.
ICJ, Pulp Mills on the River Uruguay, (Argentina v Uruguay), above n 88, para 166.
- 133.
EACJ, Africa Network for Animal Welfare (ANAW) v The Attorney General of the United Republic of Tanzania, above n 122, para 81.
- 134.
Ibid., para 78: ‘Whatever orders we must make therefore must be preventative and geared towards restraining it from pursuing the bituminized road project and secure the Serengeti ecosystem and any roads in the Serengeti should generally be used by wildlife, tourists and Park administrators and not the general public because of the attendant risks associated with such use.’
- 135.
ICJ, Gabčíkovo-Nagymaros Project (Hungary v Slovakia), above n 1, p. 41, para 140.
- 136.
See Rudall 2020, pp. 112–113.
- 137.
See for instance the rather timid approach of the ICJ in Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v Nicaragua) and Construction of a Road in Costa Rica along the San Juan River (Nicaragua v Costa Rica), above n 118 : ‘The Court further considers that Nicaragua’s request to order Costa Rica not to undertake any future development in the border area without an appropriate environmental impact assessment must be rejected (…) Costa Rica’s obligation to conduct an environmental impact assessment only applies to activities carrying a risk of significant transboundary harm, and there is no reason to suppose that Costa Rica will not comply with its obligations under international law, as outlined in this Judgment, as it conducts any future activities in the area, including further construction works on the road.’
- 138.
EACJ, Africa Network for Animal Welfare (ANAW) v The Attorney General of the United Republic of Tanzania, above n 122, para 85.
- 139.
EACJ, Africa Network for Animal Welfare (ANAW) v The Attorney General of the United Republic of Tanzania, above n 121, para 81.
- 140.
Indus Waters Kishenganga Arbitration (Pakistan v India), Final Award, 20 December 2013, 31 RIAA 309, para 112.
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Mbengue, M.M. (2022). The Protection of the Environment Before African Regional Courts and Tribunals. In: Sobenes, E., Mead, S., Samson, B. (eds) The Environment Through the Lens of International Courts and Tribunals. T.M.C. Asser Press, The Hague. https://doi.org/10.1007/978-94-6265-507-2_10
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