Abstract

On December 14, 2012 the ECOWAS Court of Justice found the Nigerian government in violation of the right to a general satisfactory environment under Art. 24 of the African Charter on Human and Peoples' Rights ("SERAP case"). This judgment has been rightly hailed as a crucial precedent in the formal recognition of the justiciability of environmental human rights. The collective nature of the human right to a satisfactory environment was clearly acknowledged and a particular emphasis was placed on States' concrete obligations to ensure its effective enjoyment. While recognizing all these positive developments, some flaws are nevertheless present in the ruling of the Court: the alleged violation of procedural environmental obligations was not investigated; there was no discussion of the special position of the Nigerian government, as both regulator of and partner in oil operations in the Niger Delta; finally, an excessive margin of appreciation was left to the defendant State as to steps for restoration of the environmental balance of the region, and this despite its persistent failure to undertake a comprehensive clean-up of the polluted areas and to grant adequate remedies to the victims over several decades. In conclusion, a more proactive role would have been expected from an international jurisdiction which vigorously defends its broad mandate and is intended to protect human rights in a bold manner.