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RULING ON PRELIMINARY OBJECTIONS BY THE
DEFENDANTS
1. The Plaintiff, the Socio- Economic Rights and accountability Project (SERAP),
a Human Rights Non - governmental Organization registered under Nigerian
Laws, and whose mandates and objectives include the promotion of respect for
socio - economic rights of Nigerians, through litigations, research and
publications, advocacy and monitoring filed on 24th July 2009 an application
against the Defendants for alleged violation of Human Rights in the region
of Niger Delta, Federal Republic of Nigeria.
2. The 1st Defendant is the President of the Federal Republic of Nigeria and
Commander-in Chief of the Nigeria armed Forces. The 2nd defendant is the
Attorney - General of the federation, and as such the Chief Law Officer of
the Federation. The 3rd Defendant is a state – owned Nigerian National
Petroleum Corporation (NNPC), which is the majority stakeholder in all joint
ventures. The 4th defendant is Shell Petroleum Development Company (SPDC), a
subsidiary of Royal Dutch Shell, is the main operator on land, and has 30%
of oil joint ventures. The 5th Defendant is Elf Petroleum Nigeria Ltd, and
has 10% of the joint ventures. He 6th Defendant is Agip Nigeria Plc, and has
5% of the joint ventures. The 7th Defendant is Chevron Oil Nigeria Plc. The
8th Defendant is Total Nigeria Plc. The 9th Defendant is ExxonMobil
Corporation.
3. The complaint is based on violation of the right to adequate standard of
living, including the right to food, to work, to health, to water, to life
and human dignity, to a clean and healthy environment; and to economic and
social development - as a consequence of: the impact of - oil related
pollution and environmental damage on agriculture and fisheries; oil spills
and waste materials polluting used for drinking and other domestic purposes;
failure to secure the underlying determinants of health, including a healthy
environment and failure to enforce laws and regulations to protect the
environment and prevent pollution.
NARATION OF THE FACTS
4. The applicant alleges that the Niger Delta, a region of federal Republic
of Nigeria, has suffered for decades from oil spills, which occur both on
land and offshore. Oil on land destroy crops and damage the quality and
productivity of soil that the communities use for farming . Oil in water
damages fisheries and contaminates water that people use for drinking and
other domestic purposes. Widespread and unchecked Human Rights violation
related to the oil industry have pushed many people deeper into poverty and
deprivation, fuelled conflict and led to a pervasive sense of powerlessness
and frustration.
5. Hundreds of thousands of people are affected, particularly the poorest
and other most vulnerable sector of the population, and those who rely on
traditional livelihoods such as fishing and agriculture. However, the Human
Rights implications have received little attention from the government of
Nigeria or the oil companies, the Defendants herein.
6. Devastating activities of the oil industry in the Niger Delta continue to
damage the health and livelihoods of the people of the area. The failure of
the oil companies and regulators to deal with them swiftly and lack of
effective clean - up greatly exacerbates the Human Rights and environmental
impacts of such spills.
7. Both African Commission on Human and peoples' Right and the UN Human
Rights Committee have expressed serious concern about pollution and called
on the government of Nigeria to take urgent action to deal with the Human
rights impacts of oil industry pollution and environmental degradation.
However, the defendants have failed individually and/or collectively to
remedy the situation.
8. On 14th November 2005, a Federal High Court of Nigeria ruled that gas
flaring in the Iwerekhan Community of Delta State was a violation of the
constitutional guaranteed rights to life and dignity, which include right to
" a clean, poison - free, pollution - free, healthy environment." Niger
Delta provides a stark case study of the lack of accountability of a
government to its people and of multinational companies almost total lack of
accountability when it comes to the impact of their operations on Human
Rights.
9. The environmental damage that has been done, and continues to be done, as
a consequence of oil production in the Niger Delta, has led to serious
violations of Human rights. People living in the Niger Delta have to drink,
cook and wash with polluted water; they eat fish contaminated with oil and
other toxins and the land they use for farming is destroyed because of the
lack of respect for the ecosystem necessary for their survival. After oil
spills the air they breathes reeks of oil and gas and other pollutants
resulting in breathing problems, skin lesions and other health problems, but
their common concerns are not taken seriously or addressed.
10. The Defendants individually and/or collectively are internationally
obligated to respect, protect, promote, ensure and fulfill the right to an
adequate standard of living in the Niger Delta.
11. The Federal Republic of Nigeria is a signatory to the International
Covenant on Economic, Social and Cultural Rights; the International Covenant
on Civil and Political Rights; and the African Charter on Human and Peoples'
Right. The Federal Republic of Nigeria is also a signatory to the Revised
Treaty of the Economic Community of West African States dated 24th July
1993.
12. Although the government of Nigeria has some regulatory systems in place,
the evidence from the Niger Delta is that these do not work. By failing to
deal adequately with corporate actions that harm Human Rights and the
environment, the government of Nigeria has compounded the problem. A culture
of impunity has been reinforced for oil companies in the Niger Delta because
of lack of effective sanctions for bad practices that undermine Human
Rights.
13. The failure of the government to allocate sufficient funding, via NNPC,
to ensure safety and prevent pollution related to oil operations has
contributed to violations of the Human Rights of the people of the Niger
Delta. However, government's failure to protect rights does not absolve the
non - state actors (Defendant herein) from responsibility for their actions
and the human rights impact thereof.
14. When companies undermine or abuse Human Rights, it is sometimes the of
genuine lack of knowledge, but more often it is a consequence of lack of due
diligence and proper planning, or of deliberate actions. The defendants
individually and/or collectively either actually caused the Human rights
harms herein highlighted contributed to them significantly.
15. The 4th - 9th Defendant herein aided and abetted the 1st - 3rd
Defendants in the violations of Human Rights highlighted above. The 4th -
9th Defendants are active participants in the serious violation of the Human
Rights of the Niger Delta people.
ORDERS SOUGHT BY THE APPLICANT
16. A DECLARATION that anyone in the Niger Delta is entitled to the
internationally recognized human right to an adequate standard of living,
including adequate access to food, to healthcare, to clean water, to clean
and healthy environment, to socio - economic development and right to life
and human security and dignity.
17. A DECLARATION that the failure and/or complicity and negligence of the
Defendants individually and/or collectively to effectively and adequately
clean up and remediate contaminated land and water; to address the impact of
oil- related pollution and environmental damage on agriculture and
fisheries; and to establish an effective system of monitoring the impact of
oil on humans, is unlawful and a breach of international Human Rights
obligations and commitments as it violates the International Covenant on
Economic, social and cultural Rights, the International Covenant on Civil
and Political Rights, and the African Charter on Human and Peoples' Rights.
18. AN ORDER directing the Defendants to ensure full enjoyment of the people
of Niger Delta to an adequate standard of living, including adequate access
to food, to health care, to clean water to clean and healthy environment; to
socio - economic development, and the right to life and human security and
dignity.
19. 19. AN ORDER directing the 1st & 2nd Defendants to hold the 4th , 5th ,
6th , 7th , 8th and 9th Defendants responsible for their complicity in the
continuing serious Human Rights violations in the Niger Delta.
20. AN ORDER compelling the 1st and 2nd Defendants to solicit the views of
the people of the area throughout the process of planning and policy -
making on the Niger Delta.
21. AN ORDER directing the government of Nigeria to establish adequate
regulations for the operations of multinationals in the Niger Delta, and to
effectively clean - up and prevent pollutions and damage to Human rights.
22. AN ORDER the government of Nigeria to carry out a transparent and
effective investigation into the activities of oil companies (3rd - 9th
Defendant herein) in the Niger Delta and to bring to justice those suspected
to be involved and/ or complicit in the violations of Human Rights
highlighted above.
23. AN ORDE directing the Defendants individually and/ or collectively to
pay adequate compensation of 1Billion Dollars(USD) ($ 1 billion) to the
victims of Human Rights violations in the Niger Delta, and other forms of
reparation that the Honorable Court may deem fit to grant.
24. The Applicant in filling this application is relying on the following:
a) African Charter on Human and People's Rights.
b) The International Convention on Civil and Political Rights.
c) The rules of the Community Court of Justice
d) The Supplementary Protocol A/SP 1/01/05 amending the Protocol (A/P
1/7/91) relating to the Community Court of Justice.
25. The Initiating application was duly served on the Defendants who have
filed their preliminary objections respectively, except the 1st and second
Defendant who are yet to respond to the application.
PRELIMINARY OBJECTIONS BY DEFENDANTS
26. The 3rd Defendant began its defense by objecting to the competence of
the plaintiff to institute this action alleging that the plaintiff does not
have access to this Honourable Court. In addition to that, 3rd Defendant
contents that that the jurisdiction given to yhe Court does not extend to
dispute between individuals and therefore the Court lacks jurisdiction over
the 3rd Defendant. The 3rd Defendant further states that the plaintiff does
not have locus standi to institute the action for and on behalf of the
people of Niger Delta. Finally the 3rd Defendant asks the Court to stop the
Plaintiff from relitigating issues and claims which have been settled or
pending before competent courts in Nigeria.
27. The 4th Defendant starts its preliminary objection contending that the
Plaintiff is not a legal person Under Nigeria law and as such it has no
capacity to institute proceedings before the Court.. The 4th Defendant
aligns itself with the 3rd Defendant on the issue of jurisdiction saying
that ECOWAS Court of Justice is not competent to adjudicate the dispute
brought to it because it is neither s member of ECOWAS nor a Community
Institution and is not otherwise subject to the jurisdiction of the Court.
28. Going further in its objection the 4tt Defendant states that the
instruments set out in section 8 of the application namely the ECOWAS
Revised Treaty, African Charter on the Rights and Welfare of the Child,
International Covenant on Economic, Social and Cultural Rights,
International Covenant on Civil and Political Rights and Universal
Declaration on Human Rights have not been incorporated into Nigerian
domestic law and are therefore incapable of being sources of enforceable
obligation on the part of the 4th Defendant who is a private legal person
existing solely under Nigerian law. Moreover, although the African Charter
on Human and Peoples' Rights has been incorporated into Nigerian law by the
African Charter on Human and Peoples' Rights Act 1983, the ECOWAS Court is
not one of courts specified under section 6(5) of the Nigerian Constitution
1999 as having jurisdiction to adjudicate in respect of alleged infractions
of domestic Nigerian law.
29. In any event the 4th Defendant contends that the Plaintiff has no cause
of action against it in respect of the matters the subject of these
proceedings. The preliminary objection is concluded by the allegation that
the claims asserted in the proceedings are statute barred pursuant to
article 9(3) of the Protocol on the community Court of Justice as amended by
Article 3 of the Supplementary Protocol of 2005 (A/SP.1/01/05), because the
oil spills alleged in the application occurred prior to June 2006 and
therefore more than three years before the commencement of these proceedings
on 23rd July 2009.
30. The 5th Defendant bases its preliminary objection essentially on the
same grounds invoked by the 3rd and 4th Defendants, that is lack of locus
standi of the Plaintiff, absence of reasonable cause of action, incompetence
of thr Court to deal with the claims against the Defendants, action being
statute barred, the non disclosure by the plaintiff of any authority to
allow it institute the proceedings on behalf of any community in Niger Delta
and finally that the Plaintiff is not a legal person under Nigerian law with
capacity to lodge the suit.
31. The 6th Defendant apart from relying on the same objections raised by
the 3rd and 5th Defendants contend that the rights alleged to be infringed
by it are economic and social rights and therefore are not justiciable as to
confer jurisdiction on the Court.
32. The 7th Defendant's objection is on the grounds that the Plaintiff has
no cause of action against it as its activities are solely on shore, to wit,
marketing of oil products, and not oil exploration or production. In
addition to that the 7th Defendant aligns itself with the 3rd, 4th, 5th and
6th Defendants on the issues of limitation of action and locus standi.
33. The 8th and 9th Defendants align themselves with the issues raised by
the other Defendants. The 9th Defendant also submits that the instruments
relied on by the Plaintiff are unenforceable against it as a private person
existing under the laws if the United States of America.
34. All Defendants who filed preliminary objection requested the Court to
dismiss the proceedings against them with substantial costs against the
Plaintiff.
PLAINTIFF'S RESPONSE TO THE PRELIMINARY OBJECTION BY THE DEFENDANTS
35. In response to the objection raised by those Defendants the Plaintiff
contends that the arguments they presented are fundamentally flawed, based
on mistaken principles of law, and cannot be sustained having regard to
sound legal reasoning established by the Court's jurisprudence and other
National and International jurisprudence.
36. The Plaintiff submits that, the 3rd, 5th ,6th , 8th & 9th Defendants'
argument on its legal capacity before the ECOWAS Court cannot stand because
it is based on the limited and outdated interpretation of standing,
especially in matters of Human Rights. The Plaintiff pointed out that the
doctrine of "locus standi" has since been relaxed in favour of public
litigation. It relied on the case of Registered Trustees of the Socio -
Economic Rights and Accountability Project (SERAP) vs. The Federal Republic
of Nigeria & Anor. Suit No ECW/CCJ/APP/08/08.
37. On the issue of jurisdiction raised by the Defendants, the Plaintiff
contends that the Competence and Jurisdiction of the Court is not limited to
adjudication cases involving ECOWAS or Community Institutions. It submitted
that the Court has both jurisdiction and the subject matter competence, to
hear the present suit and that the Defendants are resident in the territory
of a Member state of ECOWAS and therefore subject to the jurisdiction of
this Honourable court.
38. The Plaintiff also contends that there is nothing in the Court's legal
instruments ton suggest that the 4th - 9th Defendants have to be Members of
the ECOWAS or Community Institutions before it can be sued before an
international court like this one.
39. The Plaintiff stated further that the fact that the Defendants are
private persons does not lessen their responsibility for the violations of
Human Rights as guaranteed under the African Charter which the Court has
correctly stated that it has jurisdiction to interpret and apply. He relied
on article 4(g) of the Revised Treaty of ECOWAS 1993, and the ruling in
Registered Trustees of the Socio - Economic and accountability Project (SERAP)
vs. Federal Republic of Nigeria & Anor(Supra). He also referred to the case
of Alhaji Hummani Tijani vs. Federal Republic of Nigeria & 4 Ors. Suit No
ECW/CCJ/APP/01/06 and the case of Chief Ebrimah Manneh vs The Republic of
the Gambia Suit No ECW/CCJ/APP/03/08.
40. The Plaintiff also contends that under International Human Rights Law,
people whose rights are violated should have access to effective remedy and
that multinational corporations like the 3rd - 9th Defendants have
obligation under International Law not to be complicit in Human Rights
violations. He referred to article 10(c) of the Supplementary Protocol
A/SP.1/01/05 amending the Protocol (A/P.1/7/91)relating to the Court.
41. In addition to that, the Plaintiff stated that the present suit is
primarily based on the violations by the Defendants of the provisions of the
African Charter on Human and Peoples; Rights, which has been ratified by the
Nigerian government (a member of ECOWAS) and incorporated into Nigerian
domestic laws, and therefore constitutes sufficient source of enforceable
obligations on Defendants.
42. On the question of whether this suit amounts to re-litigating issues and
claims which have been settled or pending before the competent courts in
Nigeria, the Plaintiff submits that the argument of the 3rd Defendant is
misleading, as the present suit is distinctively different from any other
previous cases, that this suit raises fresh, ongoing and continuing Human
Rights violations in the Niger Delta. He relied on the case of ALHADJI
HAMMANI TIDJANI (supra).
43. On the absence of reasonable cause of action raised by the Defendants
the Plaintiff contends that given the weight of the information relied on
its application to the Court, including the report on the Niger Delta
published by the amnesty International in 2009, it is misleading to argue
that the present suit has not disclosed a reasonable cause of action against
them. He referred to the Nigerian case of Thomas vs. Olufosoye (2004) 49 WRN
37 S.C on the definition of "reasonable cause of action".
44. He further stated that the 4th, 5th, 7th and 9th Defendants continuous
action of extraction, dredging in the Niger Delta, contributes to the
serious violation of the Human Rights recognized and guaranteed by the
African Charter on Human and Peoples' Rights.
45. On the issue of its capacity to institute this suit, the Plaintiff
contends that it is duly legally registered under the Company and allied
Matters Decree 1 of 1990 of the federal Republic of Nigeria with Certificate
of Incorporation (CAC/IT/NO. 17206) attached and marked ANNEXURE 'A" in the
Plaintiff's Brief of Argument. The Plaintiff further reliedon its observer
status with the African Commission, and also that the Court in the case of
Registered Trustee of the Socio- Economic Rights and Accountability Project
vs. The Federal Republic of Nigeria and Anor. Suit No ECW/CCJ/APP/08/08,
correctly observed that the "Plaintiff (SERAP) is a Human Rights non -
governmental organization registered under the Laws of Federal Republic of
Nigeria".
46. In response to the Defendant's argument that the present suit is statute
barred, the Plaintiff contends that through the "continuing violation"
doctrine, Courts have recognized an exception to the rigid application of
the statute of limitation. The Plaintiff referred to the case of ALHADJI
HAMMANI TIDJANI (supra).
47. The Plaintiff urges the Court to dismiss the preliminary Objections in
its entirety as it lacks merit, and pray the Court to entertain and
determine the present suit.
CONSIDERATION OF THE GROUNDS AND ARGUMENTS OF THE PARTIES
APPLICABILITY OF THE AFRICAN CHARTER ON HUMAN AND PEOPLES' RIGHTS, AND OTHER
INTERNATIONAL HUMAN RIGHTS TREATIES.
48. Article 4 of the Revised Treaty of the Economic Community of West
African States (ECOWAS), 1993 provides for the applicability of the
provisions of the African Charter on Human and Peoples' Rights to Member
States of the ECOWAS.
Article 1 of the African Charter on Human Peoples rights provides that:
"The Member States of the organization of African Unity parties to the
present Charter shall recognize the rights, duties and freedom enshrined in
this Charter and shall undertake to adopt legislative or other means to give
effect to them".
Article 2 of the Charter provides that:
"Every individual shall be entitled to the enjoyment of the rights and
freedom recognized and guaranteed in the present Charter without distinction
of any kind such as race, ethnic group, colour, sex, language, religion,
political or any other opinion, national, social origin, fortune, birth or
other status".
49. In the same African Charter on Human and Peoples' Rights, Article 22
also provides that:
"(1) All peoples shall have the right to their economic, social and cultural
development with due regard to their freedom and identity and in the equal
enjoyment of the common heritage of mankind. (2) States shall have the duty
, individual or collectively, to ensure the exercise of the right to
development".
Article 24 provides that:
"All peoples shall have the right to a general satisfactory environment
favourable to their development".
50. Under International Human Rights Law, people whose rights are violated
should have access to effective remedy. International Human Rights Treaties
also require that States must take steps to protect peoples' economic,
social and cultural rights from actions of non - state actors that would
undermine the enjoyment of those rights.
ANALYSIS BY THE COURT
51. The issues raised by the Defendants that require analysis from the Court
are the following: (a) the existence of the Plaintiff as a juridical person
or legal entity under Nigeria law; (b) the capacity or locus standi of the
Plaintiff to institute proceedings for alleged violation of human rights
that affects people living in the region of Niger Delta; (c) the
jurisdiction or competence of the Court to deal with the suit lodged against
the Defendants who are not Member States of ECOWAS, Community Institutions
or Community Officials; (d) the existence or absence of a reasonable cause
of action for the Plaintiff to sue the Defendants; (e) whether the
Plaintiff's claims are statute barred; (f) enforceability of economic and
social rights.
(a) On the existence of the Plaintiff:
52. The issue of the existence of the Plaintiff to access the Court was
raised by the 3rd Defendant who bases its objection on the fact that the
Plaintiff filed the action on behalf of the people of Niger Delta who is not
a person known to law, and therefore cannot sue or be sued. To buttress that
argument the 4th Defendant also stated that the Plaintiff itself is not a
legal person under Nigerian Law.
53. This Court holds that the consideration made about Niger Delta region or
people from Niger Delta as a non- existing entity is based on the assumption
that the action is a representative one, that is, the application was filed
on behalf of people from Niger Delta. The assertion is not the people from
Niger Delta but the Registered Trustees of the Socio-Economic Rights and
accountability Project (SERAP), non - governmental organization acting on
its own without claiming to represent anyone else.
54. With the respect to the existence of the Plaintiff itself and regularity
of its constitution under Nigerian Law , what emerges from the evidence
produced before the Court, is that the Plaintiff is entity duly and legally
registered under the Company and Allied matters Decree 1 of 1999 of the
Federal Republic of Nigeria with Certificate of Incorporation (CAC/IT/No.
17206), as confirmed by ANNEXURE A in the Plaintiff's Brief of Argument.
Furthermore, Plaintiff's legal capacity was admitted by Court in a previous
case involving the Plaintiff in Registered Trustees and Accountability
Project vs. Federal Republic of Nigeria & Universal Basic Education
Commission. In a ruling delivered on 27/10/2009 the Court stated thus " The
Plaintiff (SERAP) is a human rights non¬governmental organization registered
under Laws of the Federal Republic of Nigeria". Consequently, in the absence
of compelling evidence to the contrary, the Court holds that the Plaintiff
is a legal entity duly constituted.
(b) On the locus standi of the Plaintiff
55. With respect to the alleged lack of locus standi by the Plaintiff, the
analysis of the Court firstly rely on the nature of the dispute brought
before it for adjudication. In fact, the claim presented in the application
is related to the alleged violation of the Human Rights of the people who
inhabit the Region of Niger Delta. The framework presented in the initiating
application is no only of violation of an individual's rights, but of rights
of entire communities as well as environmental devastation without
sufficient and protective intervention from public authorities.
56. There is a large consensus in International Law that when the issue at
stake is the violation of rights of entire communities, as in the case of
the damage to the environment, the access to justice should be facilitated.
57. Article 2 (5) of Convention of "Access to Information, Public
Participation in Decision- Making and Access to Justice in Environmental
Matter "defines the "public concerned" with environment protection as
"public affected or likely to be affected by, or having an interest in the
environment decision-making for the purposes of this definition
nongovernmental organization promoting environment and meeting requirements
under national law shall be deemed to have an interest". Article 9 of the
same instrument confirms the access to justice to the public concerned as
defined in Article 2 (5).
58. Although the convention is not a binding instrument on African States,
its importance, as a persuasive evidence of an international communis
opinion juris in allowing NGOs to access the Courts for protection of Human
Rights related to the environment, cannot be ignored or underestimated by
this court.
59. The capacity of NGOs to lodge complaints related to Human Rights is also
recognized by The American Convention on Human Rights which provides in its
Article 44 "that any person or group of persons, or any non governmental
entity legally recognized in one or more member states of the organization,
may lodge petitions with the commission containing denunciations or
complaints of violation of this Convention by a state party". This more
liberal locus standi has been welcomed and recommended for the African
Continent (Magnus Killander, the African Regional Human Rights system and
Other regional Systems: A Comparative Analysis, in judiciary Watch Report,
Publication from the Kenyan section of the International Commission of
Jurist, pg 182)
60. Article 33 of the Rules of Procedure of African Court of Justice and
Human Rights also opens the door of that Regional Court to non-governmental
organizations which has observer status before the (African Commission)
provided the requirements of Article 34 (3) of the Protocol are met. That is
a solution that comes directly out of the African Commission on Human and
Peoples' rights experience. In its decision I Social and Economic Rights
Action Centre (SERAC) and Another vs. Nigeria (2001) AHRLR 60 (ACHPR 2001)
the African Commission commended the role of NGOs and the usefulness of
action popularis, which is wisely allowed under African Charter".
61. Based on those authorities, and taking into account the need to
reinforced the access to justice for the protection of human and people
rights in the African context, the Court holds that an NGO duly constituted
according to national law of any ECOWAS Member State, and enjoying observer
status before ECOWAS institutions, can file complaints against HumanRights
violation in case that the victim is not just a single individual, but a
large group of individuals or even entire communities.
62. Thus, in considering the social purposes of the Plaintiff and the
regularity of its constitution it does not need any specific mandate from
the people of Niger Delta to bring the present lawsuit to the Court for the
alleged violation of human rights that affect people of that region.
(c) competence of the Court.
63. The Community Court of Justice, established by Article 15 of ECOWAS
Treaty is the main judicial organ of the Community. The Supplementary
Protocol (AP/SP.1/01/05) modified the ECOWAS Treaty and conferred on the
Court competence to determine cases of Human Rights violation that occur in
any Member State of the Community. The Protocol on Democracy and Good
Governance imposes on the on the States the obligation to apply the African
Charter on Human and Peoples' Rights as well as other International
instruments in their respective territories. The Federal Republic of Nigeria
signed the ECOWAS Treaty as well as other community instruments like the
Protocols on Democracy and Good Governance and on the Competence of the
Community Court of Justice. Therefore, there is no doubt with respect to the
jurisdiction of the Court of justice to adjudicate any case of alleged
violation of the Human Rights that occurs in the Federal Republic of Nigeria
and for which it should be held accountable.
64. But the conclusion on the jurisdiction of the Court over the Federal
Republic of Nigeria does not respond to the objection raised by the
Defendants who contend that not being parties to the Treaty or other ECOWAS
legal instruments, the cannot be sued before the Court.
65. That objection calls for the consideration by the Court of one of the
most controversial issues in International Law which relates to the
accountability of Companies, especially multinational corporations, for
violation or complicity in violation of Human Rights especially in
developing countries. In fact, one of the paradoxes that characterize
International Law presently is the fact that States and individuals can be
held accountable internationally, while companies cannot.
66. This anomaly has been the reason for growing concern from Academia and
institutions committed the promotion and protection of Human Rights around
the world. In the article entitled "Separating Myth from Reality about
Corporate Responsibility Litigation" published in the Journal of Economic
Law (2004) 263, 265, Harold Hongju Koh makes the following observations with
respect to the issue under discussion: "If states and individuals can be
held liable under international law, then so too should be corporations for
the simple reason that both states and individuals act through corporations.
Given that reality, what legal sense would it make to let states and
individuals immunize themselves from liability for gross violations of Human
Rights through the mere artifice of corporate formation?."
67. The same concern is shared by the United Nations High Commissioner for
Human Rights in its Report on Corporate Responsibility and by the Committee
on Legal Affairs of the European Parliamentary Assembly in its Report on
Human Rights and Business presented in September this year 2010.
68. This need to make corporations internationally answerable has led to
some initiatives, namely the nomination of Special Representative of the
Secretary General of the United Nations whose Report titled " Protect,
Respect and Remedy: A framework for Business and Human Rights" (The Ruggie
Report) is one of the greatest reference on the accountability of
multinationals for Human Rights violation in the world.
69. Despite the campaigned launched advocacy organizations towards new
developments, the bare truth, however, is that the process of codification
of international Law has not yet arrived at a point that allows the claim
against corporations to be brought before International Courts. Any attempts
to do so have been dismissed on the basis that the Companies are not parties
to the treaties that the international courts are empowered to enforce. This
understanding is widely shared among regional courts with jurisdiction over
Human Rights.
70. That being the current situation at the international level, the only
available alternative left to those seeking for justice against corporations
has been domestic jurisdictions, as in the case of the United States where
under the Alien Tort Claims Act (1789), it has been possible to make the
American companies operating abroad responsible for human rights abuses in
developing countries in violation of the law of nations (International Law).
Two leading examples of the disputes dealt with by American jurisdiction in
this field of corporate liability are Wiwa vs Shell, 2009 U.S. 2 d Cir, June
3, 2009, for facts that occurred exactly in the region of Niger Delta and
Doe vs Unocal Corporation 248 F. 3d 915, 9th Cir. 2001, for facts that
occurred in Burma. But it is worthy to leave clear that even in the United
States, notwithstanding a few decisions supporting corporate liability, a
recent ruling from 2nd Circuit In Kiobel V. Royal Dutch Petroleum Co. 2010
US App LEXIS 19382 (2d Cir. 2010) held that Alien Tor Act does not authorize
jurisdiction to hear claims against corporations.
71. In the context and legal framework of ECOWAS, the court stands by its
current understanding that only Member States and Community Institutions.
Can be sued before it for alleged violation of Human Rights, as laid down in
Peter David v. Ambassador Ralph Uwechue delivered on the 11th day of June
2010.
72. In that decision the Court held that"As an International Court with
jurisdiction over Human Rights violation, the Court cannot disregard the
basic principles and the practice that guided the adjudication of the
disputes on Rights at International level. Viewed from this angle, the Court
recalls that the International bodies rely essentially on treaties to which
States are parties as the principal subject of International Law. As a
matter of fact, the international regime of Human Rights imposes obligations
on States. All mechanisms established thereof are directed to the engagement
of State Responsibility for its commitment or failure towards those
international instruments. From what has been said, the conclusion to be
drawn is that for the dispute between individuals on alleged violation of
Human Rights as enshrined in the African charters on Human and Peoples'
Rights, the natural and proper venue before which the case may be pleaded is
the domestic court of the State party where the violation occurred is only
when at the national level, there is no appropriate and effective forum for
seeking redress against individuals, that the victim of such offences may
bring an action before an international court, not against the individuals,
rather against the signatory State for failure to ensure the protection and
respect for the Human Rights allegedly violated. Within ECOWAS Community,
apart from Member States, other entities that can be brought to this court
for alleged violation of Human Rights are the institutions of the community
because, since the cannot, as a rule, be sued before domestic jurisdiction,
the only avenue left to the victims for seeking redress for grievance
against those institutions is the Community Court of Justice.
73. The same reasoning expended above to justify 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.
74. Having arrived at the conclusion that it does not have jurisdiction to
entertain disputes for alleged violation of Human Rights perpetrated by the
defendants, the Court does not need to go further in the analysis of the
remaining issues raised in the preliminary objection.
DECISION
75. Whereas the existence of the Plaitiff has been established;
76. Whereas the Plaintiff has the requisite locus standi to initiate the
present proceedings;
77. Whereas the Court has no jurisdiction over the Defendants who are
corporations for alleged violation of Human Rights,
78. He Court sitting and adjudicating in public, in the Community Court of
justice, in Abuja hereby holds that it has jurisdiction to adjudicate on the
case brought by the Plaintiff against the corporate defendants.
79. Pursuant to article 66(12) of the rules of Procedures of the Court which
states that where the action does not proceed to judgment the costs shall be
at the discretion of the Court and taking into account the real nature of
these proceedings and circumstances of the case, each party shall bear their
own costs.
This Ruling is read in the open Court to the public this 10th day of
December, 2010
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