Laura Pineschi

A Major (Albeit Imperfect) Development in the Protection of the Right to a Satisfactory Environment: The Judgment of the ECOWAS Court of Justice in "SERAP v. Nigeria"

  • Abstract

Informations and abstract

Keywords: SERAP v. Nigeria Case; Oil Pollution in the Niger Delta; ECOWAS Court of Justice; Right to a Satisfactory Environment; Access to Justice; Reparation of Environmental Damage.

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.

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