N-Delta: ECOWAS Court set to deliver judgment in oil pollution case tomorrow

The ECOWAS Community Court of Justice sitting in Ibadan Oyo State is set to deliver judgment on Friday in a case brought by the Registered Trustees of the Socio-Economic Rights and Accountability Project (SERAP) against the Federal Government and six oil companies over alleged violation of human rights and associated oil pollution in the Niger Delta.
The court will decide whether the government is responsible for the pollution devastation primarily caused by the operations of multinational corporations in the Niger Delta, and whether the government has breached its due diligence obligation.

It would be re-called that SERAP’s case dated 25 July 2009, had alleged “Violations of the right to an 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.”

The organization also alleged “oil spills and waste materials polluting water 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.”

But while the court initially held that the Nigerian government and its body, the Nigerian National Petroleum Corporation (NNPC) “can be held accountable for human rights violations in the Niger Delta”, it declined jurisdiction against Chevron Oil Nigeria PLC; Shell Petroleum Development Company (SPDC); Elf Petroleum Nigeria Ltd; Exxon Mobil Corporation, Agip Nigeria PLC; and Total Nigeria PLC.

In the ruling number ECW/CCJ/APP/07/10 delivered on the UN Human Rights Day, 10 December 2010, the court held that, “The Federal Government 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 to adjudicate any case of alleged violation of human rights that occur in the Federal Republic of Nigeria, and for which it should be held accountable.”

The court’s decision removing the

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multinationals from the suit followed preliminary objections filed by their lawyers against the suit number ECW/CCJ/APP/08/09, filed and argued by SERAP counsel, Femi Falana SAN, Adetokunbo Mumuni and Sola Egbeyinka.

On the argument by the NNPC that the people of Niger Delta “are not a person known to law, and therefore cannot sue or be sued, the ECOWAS Court held that, “The consideration made about the 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. That assertion is, however, wrong because SERAP is not the people from Niger Delta but a non-governmental organization acting on its own without claiming to represent anyone else”.

Also, on the argument by Shell that SERAP is not a person under Nigerian law, the ECOWAS Court held that, “What emerges from the evidence produced before the Court is that SERAP is an entity duly and legally registered under the Companies and Allied Matters Decree 1 of 1999 of Nigeria. SERAP’s legal capacity was admitted by this Court in a previous case the organization filed against the Federal Republic of Nigeria and Universal Basic Education Commission. Consequently, the Court holds that SERAP is a legal entity duly constituted.”

The Court also held that, “With respect to the alleged lack of locus standi by SERAP, the analysis of the Court firstly relies on the nature of the dispute brought before it for adjudication. In fact, 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 application is not 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. 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.”

“Taking into account the need to reinforce 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 human rights violation in cases that the victim is not just a single individual, but a large group of individuals or even entire communities. Thus, in considering the social purposes of SERAP, 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,” the Court added.

But the Court insisted that the multinational corporations cannot be sued before it. The Court said: “One of the most controversial issues in International Law is the accountability of Companies, especially multinational corporations, for violation or complicity in violations of human rights especially in developing countries. In fact, one of the paradoxes that characterise international law presently is the fact that States and individuals can be held accountable internationally, while companies cannot.”

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