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The Ogoni Case Before The African Commission on Human and Peoples' Rights

  • Fons Coomans (a1)
Extract

In 2001, the African Commission on Human and Peoples' Rights concluded consideration of a communication under Article 55 of the African Charter on Human Rights and Peoples' Rights which dealt with alleged violations of human rights of the Ogoni people in Nigeria.1 This communication is important and special, because, for the first time, the Commission was able to deal in a substantive and groundbreaking way with alleged violations of economic, social and cultural rights which formed the substance of the complaint. In addition, in dealing with the communication, the Commission took a firm and dynamic approach that may contribute to a better and more effective protection of economic, social and cultural rights in Africa. This article discusses the case before the Commission and tries to characterize the decision of the Commission as an application of recent approaches to strengthen implementation and supervision of economic, social and cultural rights.

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1 Communication 155/96, The Social and Economic Rights Action Center and the Center for Economic, and Social Rights/Nigeria. The text of the petition may be consulted at http://www.cesr.org/text%20files/nigeria.PDF For background information about the general human rights situation in Ogoniland, see Skogly, SI, ‘Complexities in Human Rights Protection: Actors and Rights Involved in the Ogoni Conflict in Nigeria’, in 15 Netherlands Quarterly of Human Rights (1997), 4760.

2 The decision has been published at <http://www.cesr.org/ESCR/africancommission.htm>. It was communicated to the parties on 27 May 2002.

3 Information provided by Commissioner Dankwa, Rapporteur in this case; on file with the author.

4 N Verbale 127/2000 submitted by the Nigerian government at the 28th session of the Commission in Oct 2000.

5 See Odinkalu, Chidi Anselm, ‘Analysis of Paralysis or Paralysis by Analysis? Implementing Economic, Social and Cultural Rights under the African Charter on Human and Peoples' Rights’, 23 Human Rights Quarterly (2001) 327–69 at 346–7.

6 Odinkalu, above n 5, at 349. Compare Article 2(1) of the International Covenant on Economic, Social and Cultural Rights (ICESCR) which provides for progressive realisation of rights as the general state obligation.

7 Odinkalu, above n 5, at 366.

8 See Communications 54/91, 61/91, 98/93, 164/97 and 210/98 against Mauritania, as mentioned by Odinkalu, above n 5, at 364.

9 See Communications 25/89, 47/90, 56/91 and 100/93, World Organization Against Torture et al v Zaire, as mentioned by Odinkalu, above n 5, at 365.

10 Communication 155/96, Report of the Commission, § 40, 41 and 49.

11 Shue, H, Basic Rights; Subsistence, Affluence and US Foreign Policy (New Jersey: Princeton University Press, first edition 1980, second, revised edition 1996).

12 See A Eide, Final report on the right to adequate food as a human right, UN Doc E/CN.4/Sub.2/1987/23. See also for a more recent version, Eide, A, ‘Universalization of Human Rights versus Globalization of Economic Power’, in: Coomans, F et al. (eds), Rendering Justice to the Vulnerable—Liber Amicorum in Honour of Theo van Boven (The Hague: Kluwer Law Interantional, 2000), 99119, at 110–11.

13 Communication 155/96, Report of the Commission, §45.

14 Report of the Commission, above n 10, §46.

16 Compare Hoof, GJH van, ‘The legal nature of economic, social and cultural rights: a rebuttal of some traditional views’, in: Alston, Ph and Tomasevski, K (eds), The Right to Food (Utrecht: Martinus Nijhoff, 1984) 97110, at 106, 108.

17 Report of the Commission, above n 10, §47.

18 Report of the Commission, above n 10, §43.

19 Idem, §44.

20 See General Comment no 12, UN Doc E/C. 12/1999/5, General Comment no 13, UN Doc E/C. 12/1999/10, General Comment no 14, UN Doc E/C.12/2000/4 respectively.

21 Constitution of the Republic of South Africa 1996, Section 7(2).

22 Report of the Commission, above n 10, §48.

23 Art 16 (2).

24 Report of the Commission, above n 10, §53, 54. See in this respect also the observations made by the CESCR when it examined Nigeria's initial report on the implementation of the ICESCR in 1998. The CESCR ‘notes with alarm the extent of the devastation that oil exploration has caused to the environment and the quality of life in those areas, including Ogoniland where oil has been discovered and extracted without due regard for the health and well-being of the people and their environment’. These concluding observations are reproduced in UN Doc E/1999/22, at 31, §123.

25 Velasquez Rodriguez v Honduras, Inter-American Court of Human Rights, Judgment of 19 July 1988, Series C, No 4, §166, 172.

26 Report of the Commission, above, n 10, §58.

27 Report of the Commission, above, n 10, §60–2.

28 Text of General Comment no 7 (1997) on forced evictions, published in UN Doc E/l 998/22, annex IV (§3).

29 General Comment no 4 (1991) on the right to adequate housing, UN Doc E/1992/23, annex III.

30 General Comment no 4, above, n 29, §18.

31 Report of the Commission, above n 10, §63.

32 Report of the Commission, aboven 10, §64–6.

33 General Comment no 12 (1999) on the right to adequate food, UN Doc E/C. 12/1999/5,§8.

34 General Comment no 12, above n 33, §15.

35 Report of the Commission, above n 10, §68.

36 Odinkalu, above n 5, at 346–8.

37 General Comment no 3 (1990), §10, contained in UN Doc E/1991/23, Annex III.

38 See for example, Chapman, A and Russell, S, Core Obligations: Building a Framework for Economic, Social and Cultural Rights (Intersentia: Antwerp-Oxford-New York, 2002). This book contains chapters on the core content and core obligations emanating from separate economic, social and cultural rights.

39 This approach has been suggested first by Audrey Chapman in an article in the Human Rights Quarterly. See Chapman, A, ‘A “Violations Approach” for Monitoring the International Covenant on Economic, Social and Cultural Rights’, 18 Human Rights Quarterly (1996), 2366.

40 Chapman, at 38.

41 Chapman, at 43.

42 The Maastricht Guidelines on Violations of Economic, Social and Cultural Rights, adopted by a group of experts at the end of a Seminar which took place in January 1997 at Maastricht University, the Netherlands. The Guidelines have been published in 20 Human Rights Quarterly (1998), 691–705.

43 Maastricht Guidelines, §11.

44 Ibid, §14 (b), (c), 15 (i).

45 Ibid, §18.

46 Report of the Commission, above n 10, §40, 49.

47 See, for a discussion of the trend towards an increased recognition of the applicability of human rights standards to corporations, Jãgers, N, Corporate Human Rights Obligations: in Search of Accountability (Antwerp-Oxford-New York: Intersentia, Netherlands School of Human Rights Research Series No 17, 2002), chapter III.

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