Abstract
Victims of environmental pollution and degradation, especially those in the developing world, face significant barriers and/or challenges in their quest for justice. These challenges are systemic, arising from inadequate legal frameworks, weak institutional capacity and other wider governance and structural deficits. This is exacerbated by the fact that by reason of inaction on the part of regulatory agencies, private individuals are often pitted against much better resourced defendants such as multinational corporations within under-resourced systems riddled with corruption and prone to inordinate delays in the litigation process. Even the prospect of success in a limited number of high-profile cases through transnational litigation has been dealt a huge blow owing to recent decisions under the US Alien Tort Claims Act, a forum previously thought to be one of the most promising. Similarly, while there has been some positive jurisprudence emerging from regional human rights institutions in Africa, enforcement of these decisions remains a huge challenge.
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Notes
- 1.
Michael Greenstone & Rema Hanna, ‘Environmental Regulations, Air and Water Pollution, and Infant Mortality in India’ (2014) 104(10) American Economic Review 3038–3072; Engobo Emeseh, Challenges to Enforcement of Criminal Liability for Environmental Damage in Developing Countries: with Particular Reference to the Bhopal Gas Leak Disaster (2003) 1(5) Oil, Gas and Energy Law Intelligence 1–27.
- 2.
See for example Hari Osofsky, ‘Environmental Human Rights Under the Alien Tort Statute: Redress for Indigenous Victims of Multinational Corporations’ (1996–1997) 20 Suffolk Transnatinal Law Review. 335; Philip Scarborough, ‘Rules of Decision for Issues Arising under the Alien Tort Statute’ (2007) 107(2) Columbia Law Review 457–502; Douglas Brandon, ‘Holding Multinational Corporations Accountable? Achilles’ Heels in Alien Tort Claims Act Litigation’ (2011) 9 Santa Clara J. of Int’l L. 227.
- 3.
Sufian Bukurura, ‘Human Rights in Sub-Saharan Africa: Towards Complementary Enforcement of Social Justice’ (1997) 30(2) Law and Politics in Africa, Asia and Latin America 217–224 at 223. (Noting that existing mechanisms to redress social injustices in Africa are weak and inadequate); J. Mubangizi, ‘Some Reflections on Recent and Current Trends in the Promotion and Protection of Human Rights in Africa: The Pains and Gains’ (2006) 6 African Human Rights Law Journal 160; Morris Kiwinda Mbondeyi, International Human Rights and their Enforcement in Africa (LawAfrica Publishing 2011) 408 (Noting that because Africa is beleaguered by illiteracy, ignorance and poverty, individuals often lack the impetus or the wherewithal to enforce the rights entrenched in the African Charter on Human and Peoples’ Right 1981).
- 4.
Sustainable Development Goals 17 Goals to transform our World Available at http://www.un.org/sustainabledevelopment/news/communications-material/ (Accessed 13 January 2017).
- 5.
UNEP, ‘Climate Change and Human Rights’ (2015). Available at http://columbiaclimatelaw.com/files/2016/06/Burger-and-Wentz-2015-12-Climate-Change-and-Human-Rights.pdf (Accessed 25 April 2016); Engobo Emeseh, ‘Human Rights Dimensions of Contemporary Environmental Protection’ in Odello Marco and Cavandoli Sofia (eds.), Emerging Areasof Human Rights in the the 21st Century, (Routeledge, 2011a); Anita Halvorssen, ‘International Law and Sustainable Development – Tools for Addressing Climate Change’ (2011) 39(3) Denver Journal of International Law and Policy 397–421; Alezah Trigueros, ‘The Human Right to Water: Will its fulfilment Contribute to Environmental Degradation?’ (2012) 19(2) Indiana Journal of Global Legal Studies 599–625.
- 6.
Trigueros, ibid, 620. Identifying water as a basic need, Trigueros noted that despite General Assembly adoption of Resolution 64/292 in July 2010 recognising access to safe and clean water as a human right, there is a failure to enforce this right especially in developing countries.
- 7.
Mbondeyi, (n 3) 393. Engobo Emeseh, ‘The Niger Delta Crisis and the Question of Access to Justice’ in Obi Cyril I and Rustad Siri A (eds.), Oil and insurgency in the Niger Delta ( Zed Books 2011b).
- 8.
Halvorssen, ibid, 415.
- 9.
United Nations Human Rights Office of the High Commissioner, ‘Special Rapporteur on Human Rights and the Environment (Former Independent Expert on Human Rights and the Environment)’ John Knox has been Special Rapporteur since August 2012, reappointed for another three years in 2015. Available at http://www.ohchr.org/EN/Issues/Environment/SREnvironment/Pages/SRenvironmentIndex.aspx (Accessed 13 January 2017).
- 10.
See United Nations Mandate on Human Rights and the Environment John H Knox, UN Special Rapporteur, ‘Good Practices Report – 2015’ (hereinafter ‘2015 Good Practices Report’). Available at http://srenvironment.org/good-practices-report-2015/ (Accessed 13 January 2017).
- 11.
At its fourth ministerial conference as part of the ‘Environment for Europe’ on 25 June 1998, the United Nations Economic Commission for Europe (UNECE) adopted the ‘Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters’ Aarhus Denmark. The ‘Aarhus Convention’ entered into force on 30 October 2001. http://ec.europa.eu/environment/aarhus/ (Accessed 15 January 2017).
- 12.
2015 Good Practices Report (n 10).
- 13.
Principle 10 of the Rio Declaration on Environment and Development seeks to ensure that every person has access to information, can participate in the decision-making process and has access to justice in environmental matters with the aim of safeguarding the right to a healthy and sustainable environment for present and future generations. See ‘Report of the United Nations Conference on Environment and Development (Rio d Janeiro, 3–14 June 1992)’. Available at http://www.un.org/documents/ga/conf151/aconf15126-1annex1.htm (Accessed 15 January 2017).
- 14.
Aarhus Convention, (n 11) art 1.
- 15.
Articles 7–11 of the UDHR 1948 provide that everyone shall be equal before the law, the right of everyone to effective remedy under the law, non-subjection to arbitrary arrest, the right to fair and public trial and the right to be presumed innocent until proven guilty by a competent court, as well as the non-retroactivity of penal law. See the Universal Declaration of Human Rights Paris 10 December 1948 (General Assembly Res 217 A). Available at http://www.un.org/en/universal-declaration-human-rights/ (Accessed 13 January 2017).
- 16.
International Covenant for Civil and Political Rights (ICCPR) 16 December 1966, entered into force on 23 March 1976. Available at http://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx (Accessed 13 January 2017). Equivalent provisions are replicated in the ICCPR, arts 14–16.
- 17.
International Covenant on Economic, Social and Cultural Rights (ICESCR) 16 December 1966, entered into force on 3 January 1976. Available at http://www.ohchr.org/EN/ProfessionalInterest/Pages/CESCR.aspx (Accessed 13 January 2017).
- 18.
Andrew Le Sueur, ‘Access to Justice Rights in the United Kingdom’ (2000) 5 European Human Rights Law Review 457–475; Andrew Le Sueur, ‘Designing Redress: Who Does It, How and Why’ (2012) 20(1) Asia Pacific Law Review 17–44, 22. (Using the analogy of the first, second and third order changes, Le Sueur noted that certain changes in the administrative and justice systems do not only alter fundamental thinking about important aspects of justice but that they also change and extend the concerns for the redress of grievances). See also Lua Kamal Yuille, ‘No One’s Perfect (Not Even Close): Reevaluating Access to Justice in the United States and Western Europe’ (2004) 42 Columbia Journal of Transnational Law, 863–924; Stephen L. Pepper, ‘Legal Ethics: Access to What?’ (1999) 2 Journal of the Institute for the Study of Legal Ethics, 269–288.
- 19.
Jokin Alberdi Bidaguren & Daniel Nina Estrella, ‘Governability and Forms of Popular Justice in the New South Africa and Mozambique: Community Courts and Vigilantism’ (2002) 34(47) Journal of Legal Pluralism & Unofficial Law 113–135; 129–130; Wilfred Schärf and Daniel Nina, The Other Law: Non-State Ordering in South Africa (Cape Town Juta 2001) 40.
- 20.
Sufian Hemed Bukurura, ‘The Maintenance of Order in Rural Tanzania: The Case of Sungusungu’ (1994) 34 Journal of Legal Pluralism & Unofficial Law 1–31 (Noting that the Sungusungu group was formed in secrecy and by means of traditional medicine involving some divination. In fact, divination was said to be an important part of the Sungusungu modus oprandi to help solve the menace of thieves and other insecurity in the society at that time); Ernest U. Uwazie, ‘Modes of indigenous Disputing and Legal Interactions among the Ibos of Eastern Nigeria’ (1994) 34 Journal of Legal Pluralism & Unofficial Law. 87 (In the context of the traditional Ibo society in Eastern Nigeria during the 1960s and 1970s, Uwazie wrote that alternative dispute mechanism exists in every society and particularly with the Ibos, depending on the type of dispute, there were multiple legal forms by which disputes were resolved) see pages 88 & 100–101.
- 21.
‘The failure of redistribution is reflected in the lack of equality in access to justice. Santos (1991) states that African civil society is made up of three concentric rings: the central ring of ‘intimate’ civil society linked to the power of the state and therefore enjoying easy access to justice; ‘intermediate’ civil society, comprising layers of society or groups which have some access to formal justice; and ‘outside’ civil society, made up of groups and classes excluded from the state and from the services of the judicial system. Most people in third world countries belong to this last group’: See Bidaguren & Estrella (n19), 119–120. See also Kate Macdonald, The Reality of Rights: Barriers to Accessing Remedies When Business Operates Beyond Borders (London: London School of Economics and Political Science and CORE Coalition, 2009).
- 22.
Engobo Emeseh, ‘Mainstreaming Enforcement for the Victims of Environmental Pollution: Towards Effective Allocation of Legislative Competence under a Federal Constitution’ (2012) 14(3) Environmental Law Review 185–199. See also Ovo Imoedemhe, The Complementarity Regime of the International Criminal Court: National Implementation in Africa Springer (2017) 185 (within the context of how to implement the complementarity regime of the ICC in Africa, Imoedemhe noted that African countries’ judicial systems and specifically that of Nigeria suffer from mistrust in which justice seems to go to the ‘highest bidder’. See also UNODC Report 2006 at 119 where it was reported that perception of justice seems to have become that which ‘works only for the rich and powerful’.
- 23.
[2013] UKSC 78 or [2014] 1 All ELR 760.
- 24.
Frances McCartney, ‘Litigation over the Environment: An Opportunity for Change’ (January 2015) Friends of the Earth Scotland. Available at https://foe.scot/wp-content/uploads/2017/08/Litigation-Over-the-Environment-web-1.pdf (Accessed 13 January 2017). Noting that at the 5th Meeting of the Parties to the Aarhus Convention in July 2014, a further decision of the Aarhus Compliance Committee that the UK had failed to take sufficient measures to ensure that the costs for all court procedures are not prohibitively expensive and has failed to sufficiently consider the establishment of appreciate assistance mechanisms to remove or reduce financial barriers to access to justice was upheld. (see footnote 3 at 5).
- 25.
Hendrick Schoukens, ‘Access to Justice in Environmental Cases after the Rulings of the Court of Justice of 13 January 2015: Kafka Revisited? (2015) 31(81) Utrecht Journal of International & European Law 46–67.
- 26.
Findings and Recommendations of the Compliance Committee with Regard to Communication ACCC/C/208/32 (Part 1) Concerning Compliance by the European Union Adopted 14 April 2011. Available at https://www.clientearth.org/reports/aarhus-convention-compliance-committee-c32-findings.pdf (Accessed 13 January 2017).
- 27.
[2015] UKSC 28.
- 28.
See UNECE United Kingdom Decision V/9n, ‘Decision V/9n of the Meeting of the Parties on Compliance by the United Kingdom with its Obligations under the Convention’ 14 October 2014.
- 29.
(2003) 37 EHRR 28.
- 30.
(1990) 12 EHRR 355.
- 31.
(1995) 20 EHRR 277.
- 32.
(2007) 45 EHRR 10.
- 33.
see for example, ‘Toxic ‘e-waste’ Dumped in Poor Nations, Says United Nations’ The Guardian 14 December 2013 https://www.theguardian.com/global-development/2013/dec/14/toxic-ewaste-illegal-dumping-developing-countries (Accessed 13 January 2017); Rebecca Short, ‘There is no Land for Toxic Dumping in Africa’ 22 April 2016 http://afjn.org/there-is-no-land-for-toxic-dumping-in-africa/; James Temperton, ‘Toxic e-waste in Asia Jumps 63% in Five Years’ 17 January 2017 http://www.wired.co.uk/article/un-south-east-south-asia-e-waste-environment (Accessed 13 January 2017).
- 34.
Uchechukwu Nwoke, ‘Two Complementary Duties under Corporate Social Responsibility Multinationals and the Moral Minimum in Nigeria’s Delta Region’ (2016) 58(1) International Journal of Law and Management 2–52; Edwin Mujih, ‘The Regulation of Multinational Companies Operating in Developing Countries: A Case Study of the Chad-Cameroon Pipeline Project’ (2008) 16(1) African Journal of International and Comparative Law 83–99.
- 35.
Rita Kufandarerwa, ‘Corruption is Africa’s Greatest Foe’ News24.com 25 January 2017 https://www.news24.com/MyNews24/corruption-is-africas-greatest-foe-20170125 (Accessed 15 January 2017); Bol Mathieng Juba, ‘Lack of Accountability and Causes of Current Political Instability: A Case for South Sudan’ SouthSudanNation.com 26 February 2015. See also, Tumai Murombo, ‘The Effectiveness of Initiatives to Promote Good Governance, Accountability and Transparency in the Extractives Sector in Zimbabwe’ (2016) 60(2) Journal of African Law 230–263; Indira Carr, ‘Corruption, the Southern African Development Community Anti-Corruption Protocol and the principal-agent-client Model’ (2009) 5(2) International Journal of Law in Context 147–177.
- 36.
Eghosa, Ekhator, ‘Regulating the Activities of Oil Multinationals in Nigeria: A case for Self-Regulation?’ (2016) 60(1) Journal of African Law 1–28, 15–16 (Ekhator noted that in its operations in Ogoniland in the Niger-Delta area of Nigeria, although ‘Shell pledged to conduct its business as responsible corporate members of society, to comply with applicable laws and regulations, to support fundamental human rights…’, it is argued that shell only pays lip service…, rather than engage in well-defined self-regulatory measures’). On the Union Carbide case in India, see Upendra Baxi, ‘Human Rights Responsibility of Multinational Corporations, Political Ecology of Injustice: Learning from Bhopal Thirty Plus?’ (2016) 1(1) Business & Human Rights Journal 21–40; Jayaprakash Sen, ‘Can the Defects of Natural Justice be Cured by Appeal: Union Carbide v Union’ (1993) 42(2) International & Comparative Law Quarterly 369–381.
- 37.
Hayley Woodin, ‘Goldcorp’s Marlin Mine: A Decade of Operations and Controversy in Guatemala’ 4 May 2015 https://www.biv.com/article/2015/5/goldcorps-marlin-mine-decade-operations-and-contro/ (Accessed 15 January 2017).
- 38.
Business & Human Rights Resource Centre, ‘Texaco/Chevron Lawsuits (Re Ecuador)’ (Chevron v Ecuador). Available at https://business-humanrights.org/en/texacochevron-lawsuits-re-ecuador (Accessed 15 January 2017). (Multiple cases have been filed with respect to the pollution of rainforest of Ecuador in different jurisdictions and at different times. Despite the multiplicity of actions, in October 2014, the Ecuadorian communities further made a complaint to the International Criminal Court (ICC) against John Watson the CEO of Chevron alleging that the pollution and the subsequent failure of the high-ranking officers and CEO of Chevron to remedy the situation constituted crimes against humanity. However, in March 2015, the Chief Prosecutor of the ICC declined investigation and noted that the allegations were purely outside the jurisdiction of the ICC).
- 39.
‘Trafigura Found Guilty of Exporting Toxic Waste’ BBC News 23 July 2010 www.bbc.co.uk/news/world-africa-10735255 (Accessed 15 January 2017). (A Dutch Court found the multinational, Trafigura guilty of illegally exporting toxic waste from Amsterdam, concealing the nature of the cargo and dumping them in Ivory Coast in 2006, thereby causing injury to thousands of people.
- 40.
Gideon Kanner, ‘Beyond the Limits; Case Overload in Appellate Courts Breeds Incomprehensible Law (11 June 1993) 106(120) The Los Angeles Daily Journal 6; ‘Why Justice in Africa is Slow and Unfair, the Challenges of Establishing the Rule of Law’ The Economist 1 July 2017. Available at https://www.economist.com/news/middle-east-and-africa/21724390-challenges-establishing-rule-law-why-justice-africa-slow-and (Accessed 16 January 2017).
- 41.
Godswill Agbaitoro, Mark Amakoromo & Eddy Wifa, ‘Enforcement Challenges in the Protection of the Environment from Upstream Petroleum Operations in Nigeria: The Need for Judicial Independence’ (2017) 3 International Energy Law Review 85–93, 90–92. (Highlighting the importance of the Jonah Gbemre case, in which Gbemre sued on behalf of himself and the Iwherekan community in Delta State Nigeria, Agbaitoro et al. observed that the important distinction of the case was its focus on the protection of the environment as against other cases where compensation was the focus. Although the court gave judgment in favour of Gbemre, enforcement remained problematic because of lack of independence of the judiciary).
- 42.
Agbaitoro et al. ibid, 92.
- 43.
Chevron v Ecuador, (above, note 38).
- 44.
Ibid.
- 45.
OECD Guidelines for Multinational Enterprises http://www.oecd.org/corporate/mne/ (Accessed 16 January 2017).
- 46.
Such as the Ecuador v Chevron transnational multiple cases.
- 47.
For example, the use of the African regional court, African Court of Human Right to enforce the provisions of the African Charter on Human and Peoples Right. See Mbondeyi, (2011n 3) 395–400.
- 48.
The OCED guidelines provide non-binding principles and standards for responsible business conduct in a global context consistent with applicable laws and internationally recognised standards. See above, note 45.
- 49.
569 U.S (2013) or 133 S. Ct. 1659 (2013). For detail of the cases see Business & Human Rights Resource Centre, ‘Shell Lawsuit (Re Nigeria – Kiobel & Wiwa – Koibel v Shell, Wiwa v Shell)’. Available at https://business-humanrights.org/en/shell-lawsuit-re-nigeria-kiobel-wiwa (Accessed 16 January 2017).
- 50.
Ibid. In March 2008, the US district court dismissed the claims for lack of jurisdiction. On 16 November 2009, the plaintiffs brought a motion for reconsideration. The court re-examined the issue of jurisdiction and said that a direct business relationship must be established between the USA and SPDC in order for Alien Tort Claims Act (ATCA) to apply and for the court to assume jurisdiction. On 21 June 2010, the district court ruled that the plaintiffs had not shown that a direct business relationship existed, and the judge dismissed the suit against SPDC.
- 51.
Ibid.
- 52.
A,F Akpan v Royal Dutch Shell, plc.; E. Dooh v Royal Dutch Shell, plc.; F.A Oguru v Royal Ducth Shell plc. Court of Appeal of the Hague (18 December 2015). Available at https://www.elaw.org/af-akpan-v-royal-dutch-shell-plc-0 (Accessed 17 January 2017).
- 53.
The Bodo Community & Others v Shell Petroleum Development Company of Nigeria Ltd.: TCC 4 July 2014 [2014] EWHC 2170 (TCC).
- 54.
See Shell Lawsuit (Re Oil Pollution in Nigeria) involving oil spillages in three villages namely, Oruma, Goi and Ikot Ada Udo. The spillage destroyed plaintiffs’ farmlands and fishponds, resulting in pollution and making them unfit for use.
- 55.
Akenhead J in the Bodo Community case, ibid.
- 56.
- 57.
SERAP (n 56).
- 58.
Ibid.
- 59.
Ibid.
- 60.
Ibid.
- 61.
See Baxi, ‘Learning from Bhopal case’ (n 36).
- 62.
See Trafigura case, (n 39).
- 63.
UNEP (2011) ‘Environmental Assessment of Ogoniland’, available at: http://www.unep.org/nigeria/ (accessed 12 August, 2011).
- 64.
William Godnick, Diana Klein, and Camilo González-Posso, Conflict, Economy, International Cooperation and Non-Renewable Natural Resources (2008) IfP/International Alert/INDEPAZ/PLASA/Socios Peru); Maxi Lyons, ‘A Case Study in Multinational Corporate Accountability: Ecuador's Indigenous Peoples Struggle for Redress’ (2004) 32 Denver. Journal of International Law and Policy, 701–732; Jodie Michalski, ‘The Careless Gatekeeper: Sarei V. Rio Tinto, Plc, and the Expanding Role of U.S. Courts in Enforcing International Norms’ (2006) 15 Tulane Journal of International and Comparative Law 731–752
- 65.
Kofi Annan, ‘Secretary-General’s remarks to the Ministerial Meeting of the Security Council on Justice and the Rule of Law: The United Nations Role (2003). 24 September 2003, New York. Available at http://www.un.org/apps/sg/sgstats.asp?nid=518 (Accessed 20 July 2006).
- 66.
See ‘Transforming our World: The 2030 Agenda for Sustainable Development’. Available at https://sustainabledevelopment.un.org/post2015/transformingourworld (Accessed 19 January 2017).
- 67.
Ibid, See the Preamble.
- 68.
Rio + 20 outcome document, The Future We Want (2012) Available at https://sustainabledevelopment.un.org/futurewewant.html (last accessed 30 December 2015).
- 69.
Rio + 20 Declaration on Justice, Governance and Law for Environmental Sustainability (2012) Available atwww.unep.org/rio20/Portals/24180/Rio20_Declaration_on_Justice_Gov_n_Law_4_Env_Sustainability.pdf (last accessed 30 December 2015).
- 70.
See Goal 16 UN SDG (n 4). (emphasis mine).
- 71.
Ibid.
- 72.
Ibid.
- 73.
See generally UN SDG (n 4).
- 74.
Ibid.
- 75.
UNDP, ‘Goal 16 – The Indicators We Want: Virtual Network Sourcebook on Measuring Peace, Justice and Effective Institutions’. Available at http://www.undp.org/content/dam/undp/library/Democratic%20Governance/Virtual%20Network%20on%20Goal%2016%20indicators%20-%20Indicators%20we%20want%20Report.pdf (Accessed 18 January 2017).
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Emeseh, E. (2018). Environmental Victims, Access to Justice and the Sustainable Development Goals. In: Eboe-Osuji, C., Emeseh, E. (eds) Nigerian Yearbook of International Law 2017. Nigerian Yearbook of International Law , vol 2017. Springer, Cham. https://doi.org/10.1007/978-3-319-71476-9_13
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