A human rights approach to climate litigation before the ECOWAS court

Abstract

Climate change can be litigated through tort, common law, statute/policy, public trust doctrine or human rights among others. While climate change litigation appears to have developed in states of the Global North, its use is still relatively recent in states of the Global South. Nor has it been seriously considered from the perspective of international tribunals from the Global South. Therefore, this study examines a human rights approach to climate change litigation in the Economic Community of West African States Court of Justice (ECOWAS Court). This study finds that there are some developments in certain jurisdictions which make a human rights approach promising in terms of locus standi, justiciability, causation and separation of powers and that they can be related to the jurisprudence of the ECOWAS Court. It also finds that the doctrine of exhaustion of local remedies does not apply to the ECOWAS Court. Based on these findings, it is argued that a human rights approach can be successfully deployed to litigate climate change before the ECOWAS Court and that it can wake up West African States from their lethargy in terms of policy on, and treatment of, climate issues. The study concludes that individuals and NGOs may adopt a human rights approach before the ECOWAS Court to influence policy change and/or state behaviour in West African States.

Introduction

Greenhouse gases are being released to the atmosphere beyond what the atmosphere can contain. One of the consequences has been climate change. ¹ Climate change has seriously damaged terrestrial, freshwater and coastal and open ocean marine ecosystems. ² It has also negatively impacted food and water security, and makes the achievement of sustainable development goals difficult. ³ In order to address this situation, there have been several interventions including litigation. Climate change can be litigated through tort, ⁴ common law, ⁵ statute/policy, ⁶ public trust doctrine ⁷ or human rights ⁸ among others. While other forms of litigation are hampered by the challenges of locus standi, justiciability, causation and separation of powers, a human rights approach to climate litigation appears to have somewhat overcome some of these challenges in some jurisdictions such as Nigeria. ⁹ In addition, while climate change litigation appears to have developed in states of the Global North, its use is still relatively recent in states of the Global South. ¹⁰ Nor has it been seriously considered from the perspective of supra or international tribunals from states of the Global South. As of May 2022, about 2002 cases had been filed on climate change. ¹¹ 1426 was from the United States, 124 came from Australia, 83 came from the United Kingdom, while 60 came from the European Union. ¹² Similarly, as of 2020, Canada had 22 cases while New Zealand had 18 cases. ¹³ This contrasts sharply with what obtains in Sub-Saharan Africa. Based on the Sabin Center and Climate Change Laws of the World database, there were about 14 cases as of February 2023 in Sub-Saharan Africa: 2 in Kenya, ¹⁴ 2 in Nigeria, ¹⁵ 7 in South Africa, ¹⁶ 2 in Uganda ¹⁷ and 1 before the East African Court of Justice. ¹⁸ Of these cases, six have been decided ¹⁹ while eight are pending. ²⁰ Against the backdrop of the above situation, this study examines a human rights approach to climate change litigation before the Economic Community of West African States Court of Justice (ECOWAS Court). The rationale behind the focus on ECOWAS Court is that the Court ‘enjoys the grudging respect of ECOWAS member states and is not summarily dismissed by even the most recalcitrant states.’ ²¹ This implies that a successful litigation of climate change before this Court can impel some change in member states. In this study, a comparative approach is adopted. Thus, a human rights approach to climate litigation will be compared with the same approach before the European Court of Human Rights (ECtHR) which is arguably one of the most important supra national tribunals on human rights in the Global North.

ECOWAS court: the legal framework

Economic Community of West African States (ECOWAS) was established through the ECOWAS Treaty of 1975. It was established to achieve economic integration among its members. ²² On 24 July 1993, this Treaty of 1975 was amended and became the Revised Treaty of the Economic Community of West African States. The Revised Treaty came into force on 23 August 1995. The Revised Treaty provides for the harmonisation and coordination of policies for the protection of the environment. ²³ It also provides for the recognition, promotion and protection of human and peoples’ rights in accordance with the provision of the African Charter on Human and Peoples’ Rights. ²⁴ In addition, the Revised Treaty established the Community Court of Justice commonly known as the ECOWAS Court. ²⁵

While the Revised Treaty established the Court, the Protocol on the Community Court of Justice regulates the Court. ²⁶ The Protocol provides for such issues as composition, ²⁷ terms of office, ²⁸ privileges and immunity, ²⁹ sittings ³⁰ and proceedings, ³¹ among others. There is also the Supplementary Protocol ³² that amended the Protocol on the Community Court of Justice. The Supplementary Protocol amended the Protocol on the Community Court of Justice on issues of jurisdiction, ³³ access to the Court ³⁴ and the method of the implementation of the judgements of the Court, ³⁵ among others. Both the Protocol on the Community Court of Justice and the Supplementary Protocol which amended it are attached to the Revised ECOWAS Treaty. ³⁶ This makes these Protocols parts of the Revised Treaty. In a nutshell, the legal framework of the ECOWAS Court is the Revised ECOWAS Treaty, the Protocol on the Community Court of Justice, and the Supplementary Protocol amending the Protocol on the Community Court of Justice.

A human rights approach to climate litigation

A human rights approach to climate litigation will be examined in this section in light of the law relied upon as the basis of litigation, the nature of the relief sought, standing, justiciability, causation and separation of powers. The rationale behind examining the approach in light of these features is that there are certain developments in respect of these features in certain jurisdictions which make the approach promising. In addition, some of these developments can be related to the jurisprudence of ECOWAS Court as it will later be seen in the course of this article.

In adopting a human rights approach to climate change litigation, the basis of litigation is human rights norms enshrined in international instruments which may be general such as International Covenant on Civil and Political Rights (ICCPR) or regional such as European Convention on Human Rights (ECHR) or constitution if the matter is litigated before a domestic court. ³⁷ However, the Universal Declaration of Human Rights (UDHR), the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR) do not contain the right to a clean environment or the right to a climate conducive to the sustenance of life. ³⁸ In spite of this, human rights such as the right to life, the right to health, the right to culture, ³⁹ the right to adequate housing, the right to food, ⁴⁰ the right to water, the right to livelihood, the right to self-determination ⁴¹ and the rights of present and future generations, ⁴² among others have been used in climate change litigation. However, on 28 July 2022, the United Nations General Assembly passed a resolution recognising the right to a clean, healthy, and sustainable environment as a human right. ⁴³ This resolution was founded on a similar text earlier adopted by the UN Human Rights Council (UNHRC) in October 2021. ⁴⁴ Unlike the UDHR, the ICCPR and the ICESCR, the African Charter on Human and Peoples’ Rights (African Charter) ⁴⁵ contains some rights favourable to the protection of the environment. Article 4 of the African Charter on Human and Peoples’ Rights guarantees the right to life to every human being while Article 16 guarantees to every individual ‘the right to enjoy the best attainable state of physical and mental health’. Article 20 provides that ‘all peoples shall have the right to existence’ while Article 24 stipulates that ‘all peoples shall have the right to a general satisfactory environment favourable to their development.’ It can be argued that the right to a healthy environment is contained in this Charter.

The nature of the relief sought in a human rights approach to climate litigation often takes the form of mitigation of greenhouse gases, ⁴⁶ adaptation to the impacts of climate change ⁴⁷ or compensation to injury suffered occasioned by climate-related activities. ⁴⁸ In addition, the constitutionality or legality of law, or the legality of a policy made pursuant to law ⁴⁹ may be challenged because human rights are violated or that they are not adequately protected. In a nutshell, a finding of violation of human rights must be made.

Standing or locus standi is the competence in law to file an action or the legal requirement to be met to be a party to a suit. ⁵⁰ What constitutes standing varies from one jurisdiction to the other. ⁵¹ However, what appears to be common is that the entity filing an action must have a modicum of interest that will suffer or has suffered. ⁵² How the court determines whether an entity that files an action has standing may be a matter of fact or law. Standing was held to subsist in sub-national governments because they also had interest in not losing their coastal lands as quasi-sovereigns. ⁵³ It was however refused because the landowners who suffered from Hurricane Katrina could not specifically linked their injury with the defendants ⁵⁴ in addition to the fact that the case was identical to the previous case (res judicata) and non-justiciable as a political question. In this instance, standing dovetails into causation. An NGO was granted standing while the 886 people on whose behalf the action was filed was refused standing for ‘practical reasons.’ ⁵⁵ In this instance, standing was refused as a matter of fact. Standing was granted to some NGOs because of the enormity of the project involved, the approval of which would cause greenhouse emissions that would affect everybody including the plaintiffs. ⁵⁶ However, in some jurisdictions such as Colombia, Pakistan and Nigeria where a human rights approach is adopted, standing is not almost always discussed. ⁵⁷ In fact, there are instances such as in India where the court can initiate the action on its own relying on its competence to do so under an enabling statute. ⁵⁸ Still, it is worth noting that while in these jurisdictions a human rights approach tends to dispense with standing, standing is still a major hurdle before the ECtHR. ⁵⁹

Justiciability is the capacity of an adjudicating body to grant remedy in respect of an injury which has occurred or is likely to occur. ⁶⁰ It may also mean the amenability of a matter to judicial scrutiny. This means that a matter is justiciable when it can be measured using legal parameters. The first definition of justiciability is a question of law. In this instance, there is a law which specifically grants a court the power to decide a matter. The second definition is a question of fact. In this instance, it is the court that decides whether the nature of the matter brought before it is one that can be legally or judicially determined. It involves a reasonable measure of prudence on the part of the court. ⁶¹ The first condition must have been met before the second is considered. Thus, the court must have the capacity to exercise jurisdiction by an enabling law before it proceeds to consider whether the dispute before it can be decided with the instrumentality of the law. Climate litigation where a human rights approach is not adopted often raises the question of whether the issue before the court is one that the law should take cognizance of or whether it is better left to the political organ to decide. However, in such jurisdictions identified above where standing is not an issue, where a human rights approach is adopted, justiciability is often considered to be a non-issue as well. The reason is that there is a close nexus between standing and justiciability and since courts in these jurisdictions generally often exercise jurisdiction on human rights issues, they often treat justiciability as a non-issue.

With respect to causation, one of the most difficult challenges faced in climate litigation is to be able to link the defendant with the alleged injury. Thus, in Macquarie Generation v Hodgson, ⁶² it was held that there was no basis to read into the license for the coal-power plant that CO₂ emission would be limited because there was no evidence that CO₂ emission actually caused nuisance since it is ‘colourless, odourless and inert.’ Also, where the plaintiff had claimed that greenhouse gas emission from a company under the German law constituted nuisance and sought to obtain damages to offset the cost of protecting his town from melting glaciers, it was held that there was no ‘linear causal chain’ linking the alleged injury with the company's emissions. ⁶³ However, attribution science where contribution to climate change can be linked to specific entities is developing and making it possible to address causation challenge by linking a company's conduct to climate harm. This is done by establishing (1) the association between greenhouse gas emissions and meteorological change and (2) the relationship between meteorological change and societal impacts. ⁶⁴ Hence, it may be possible to be able to link a company's conduct with a particular climate harm even if only partially. ⁶⁵ In the same vein, it may be possible to roughly ascertain the percentage contribution of a state where it is the defendant. ⁶⁶ While a human rights approach to climate change litigation still faces the challenge of causal link, nonetheless, in a jurisdiction like Nigeria, the evidential bar linking the defendant with the injury is not always prohibitively high. ⁶⁷ In addition, the invocation of the precautionary principle to mitigate a high evidential burden cannot be ruled out. The principle prohibits relying on the uncertainty of scientific findings to be used as an excuse to embark on a risky venture. ⁶⁸ This approach has been adopted by ECtHR in several environmental cases ⁶⁹ and its use in climate change cases cannot be out of place. ⁷⁰ Similarly, Margaretha Wewerinke-Singh, after examining rules of international law on state responsibility for wrongful conduct confirms that ‘inconclusive evidence about attribution is not a bar to establishing state responsibility for human rights violations associated with climate change.’ ⁷¹

Climate litigation where a human rights approach is not adopted also often raises concern with respect to the doctrine of separation of powers. It may be contended that the remedy sought requiring the state to limit greenhouse gas emission would dovetail into a situation where the judicial organ would be exercising jurisdiction on a matter on which only the democratically elected representatives were competent to address. ⁷² It is possible also that a court may regard the issue at stake as one of legal protection of rights, hence, rules that it is inconsequential if the decision would have political outcomes. ⁷³ Where climate issues are framed in human rights terms before the court, however, separation of powers concern is not usually raised in jurisdictions where standing cum justiciability is not an issue. The reason is that the court has always exercised jurisdiction on human rights. ⁷⁴ Even in some jurisdictions where standing may be an issue, the court, in some instances such as Germany, protects human rights at the expense of separation of powers. ⁷⁵ What the court does is to require policymakers to justify their choices in light of their impacts on human rights. ⁷⁶ In order words, those affected by the decisions of policy makers and have their human rights denied are entitled to the right to justification. ⁷⁷ Once there is a failure to justify, the court automatically intervenes. The intervention of the court manifests in granting remedies which are often couched in terms of obligations to protect, respect and fulfil human rights. ⁷⁸ These remedies are wide-ranging ‘including restitution, compensation, rehabilitation, and measures of satisfaction such as public apologies, public memorials, guarantees of non-repetition and, perhaps most importantly, changes in relevant laws or practices.’ ⁷⁹ This judicial attitude resonates with the argument that ‘the protection and development of human rights should be the main concern in climate change litigation’. ⁸⁰

Litigating climate change through human rights before the ECOWAS court

The litigation of climate change through human rights before the ECOWAS Court will be considered from the perspective of exhaustion of local remedies rule, standing, jurisdiction, justiciability and enforcement, compliance and impact. Within the context of the ECOWAS Court, these five features appear to be the most relevant in litigating climate change through human rights.

Exhaustion of local remedies rule

The rule of exhaustion of local remedies stipulates that administrative and judicial processes which are available at the domestic jurisdiction must have been explored and exhausted before a complaint can be filed before an international court or tribunal. ⁸¹ The Permanent Court of International Justice (PCIJ) applied this principle in the Panevezys-Saldutikis Railway Case ⁸² and in the Phosphates in Morocco Case (France v Italy). ⁸³ The International Court of Justice also applied the principle in the Case Concerning Elettronica Sicula S.p.A. (United States of America v Italy) ⁸⁴ where Italy contended that the claim filed by the United States was inadmissible due to the alleged failure of the two US corporations concerned to exhaust on a primary basis the local remedies available to them in Italy. In the Akdivar case, ⁸⁵ the ECtHR explained the rationale behind the rule by stating that ‘…the rule of exhaustion of local remedies…obliges those seeking to bring their case against the State before an international judicial or arbitral organ to use first the remedies provided by the national legal system…The rule is based on the assumption… that there is an effective remedy available in respect of the alleged breach in the domestic system…In this way it is an important aspect of the principle that the machinery of protection established by the Convention is subsidiary to the national systems safeguarding human rights.’ ⁸⁶

While it is arguable that the validity of the rule is not in doubt having been applied by various international tribunals, however it appears that the rule must have been specifically provided for in an international instrument before it can be applied. For instance, Article 41(1)(c) of the International Covenant on Civil and Political Rights provides that ‘The Committee shall deal with a matter referred to it only after it has ascertained that all available domestic remedies have been invoked and exhausted in the matter, in conformity with the generally recognised principles of international law. This shall not be the rule where the application of the remedies is unreasonably prolonged.’ There is also a similar provision in Article 5(2) of the Optional protocol to the Covenant. Also, Article 35(1) of the ECHR provides that ‘The Court may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law…’. Article 46(1) of the America Convention on Human Rights contains similar provision. In Article 56(5) and (6) of the African Charter on Human and Peoples’ Rights, it is provided that matters brought before the African Commission on Human and Peoples’ Rights shall be considered if they are sent after the exhaustion of local remedies, if any, unless it is obvious that the procedure is unduly prolonged. It therefore appears that the provisions contained in these instruments form the legal basis upon which International Human Rights bodies such as the UN Human Rights Committee or the ECtHR are called to apply the rule.

This is however not the position before the ECOWAS Court which has no provision on the rule of exhaustion of local remedies in the Treaty establishing it nor in its Protocol any point supporting the rule. Thus, the rule of exhaustion of local remedies does not apply to ECOWAS Court. In Mme Hadijatou Mani Koraou v The Republic of Niger, ⁸⁷ the Republic of Niger argued that the ECOWAS Court should not adjudicate the matter because it was pending before another court in Niger. Thus, it argued for the application of the rule of exhaustion of domestic or local remedies. Niger further argued that the Court should develop the rule through its practice. Niger urged the Court to develop the rule by making reference to the practice of human rights bodies and the principle of subsidiarity. On the other hand, the applicant argued that the rule of exhaustion of domestic remedies did not apply before the ECOWAS Court. The applicant relied on Article 10(d)(ii) of the Supplementary Protocol A/SP. 1/01/05. The applicant also argued that even if the rule of exhaustion of domestic remedies were to apply, it would not act as a bar because all reasonable efforts had been made to secure justice in Niger all to no avail and that the system had demonstrated its inability and/or unwillingness to provide an effective remedy. The ECOWAS Court held that the rule of exhaustion of domestic rule does not apply before it because the Supplementary Protocol does not provide for it. The Court stated further that since the Supplementary Protocol as decided by the ECOWAS legislature does not provide for the rule, it could not develop the practice as doing so would impose new requirements on the applicant that were not provided for in the treaty. ⁸⁸ The implication is that access to the ECOWAS Court is enhanced and that an aggrieved entity in climate change related circumstances can have direct access to the Court to ventilate their grievance.

Standing

Standing, as previously noted, is the competence of an entity to file an action before the court. Article 10 of the Protocol on the Community Court of Justice as amended by Article 4 of the Supplementary Protocol is headed ‘Access to the Court’ and stipulates in paragraph 10(d) that access to the court is open to ‘individuals on application for relief for violation of their human rights.’ While this provision is clear with respect to an individual or a group of individuals, it says little about the competence of an NGO to file an action or of an entity that does not have an interest that will be affected. The role of NGOs in a human rights approach to climate litigation cannot be over-emphasized as they often institute actions against states even when their interests are not directly affected. In SERAP v Federal Republic of Nigeria and Universal Basic Education Commission, one of the grounds upon which the jurisdiction of the Court was challenged was that the plaintiff lacked standing to institute the action as it had not suffered any damage, loss or personal injury. The ECOWAS Court held that public international law is in favour of promoting human rights and that in public interest litigation the plaintiff does not need to have suffered any personal injury or has a special interest that needs to be protected to have standing.

The implication of the above decision is that NGOs or any entity can file a climate change action by relying on human rights before the ECOWAS Court even when they do not have an interest that can suffer. This means that public interest litigation is permitted before this Court.

This is however not the case before the ECtHR. As previously stated, standing still appears to be a hurdle before the ECtHR. In the jurisprudence of the Court, an applicant must have the status of a victim under Article 34 of the ECHR. A victim within the meaning of Article 34 must be directly affected by the infringement complained of. ⁸⁹ In Cordella and Others v Italy, ⁹⁰ 180 applicants from the municipality of Taranto, Italy alleged that toxic emissions from the steel plant in the municipality had effect on their health and environment in violation of their right to respect for private and family life under Article 8 of the ECHR. The Court considered that 19 applicants did not have victims status under Article 34 as they did not live in one of the towns classified as being at high environmental risks. The Court held that the rights of the remaining applicants were violated in contravention of Article 8 of the ECHR.

While Cordella is not directly on climate change, however, the case of KilmaSeniorinnen v Switzerland ⁹¹ is a climate change action. ⁹² This case is before the Grand Chamber of the ECtHR and thus underscores its importance. ⁹³ In this case, an association of senior women (Senior Women for Climate Protection, Switzerland) filed an action against the Swiss government. They alleged the violation of their right to life and private and family life on health grounds under Articles 2 and 8 of the ECHR as a result of Switzerland's failure to adopt necessary legislative and administrative framework to implement its share of preventing a global temperature increase of more than 1.5°C above pre-industrial levels. One of the issues being seriously contested before the Court was the status of the senior women as victims. The senior women who were above 75 years claimed that they were exposed to morbidity and mortality due to their exposure to heatwave and that they were affected as aged people much more than other people; and thus were victims. The government of Switzerland on its part claimed that the women were not the only one affected by climate change and thus were not victims. But the fact that others suffered the same way as an applicant does not necessarily deny the applicant the status of the victim. In Klass v Germany, ⁹⁴ the ECtHR stated that while the surveillance scheme hampered the postal and telecommunication services of all users, this did not deny the applicant his status as a victim.

While the victim must be directly affected by the infringement complained of, nonetheless, the ECtHR has accorded the status of indirect victim to relatives of a direct victim. ⁹⁵ It has also recognised the status of a potential victim where the person involved is at the risk of being affected even though an injury has not occurred. ⁹⁶ But whether the victim is direct, indirect or potential, there must be a link between the person who seek remedy and the infringement complained of. ⁹⁷ With respect to NGOs, an NGO may have the status of a victim if it is directly affected but the status does not extend to its members. ⁹⁸ This applies even if the purpose for which the NGO was established was to defend the interests of its members. ⁹⁹ Thus, while an NGO may be able to act for its members in terms of the purpose for which it is established, its competence to act does not confer the status of victim on its members. The members of an NGO must still be directly affected before the NGO can maintain a competent action. While an NGO may be a victim if it is directly affected, there are certain rights that it cannot invoke. For example, an NGO cannot invoke the right to life and the right to private and family life on the grounds of health problem. ¹⁰⁰ In a nutshell, actio popularis is not acceptable before the ECtHR although it is acceptable before the ECOWAS Court. ¹⁰¹

In spite of this, it is worth noting that the meaning ascribed to the status of the victim by the ECtHR is context-specific and may not be as rigid as it appears. The ECtHR has stated that article 34 of the ECHR is not to be construed in a ‘rigid, mechanical and inflexible way’ ¹⁰² because an ‘excessively formalistic interpretation…would make protection of the right guaranteed by the Convention ineffectual and illusory.’ ¹⁰³ The ECtHR also stated that ‘the term “victim” in Article 34 must be interpreted in an evolutive manner in light of the conditions in contemporary society.’ ¹⁰⁴ While the ‘primary purpose of the Convention system is to provide individual relief, its mission is also to determine issues on public-policy grounds in the common interest, thereby raising the general standards of protection of human rights and extending human rights jurisprudence throughout the community of Convention states.’ ¹⁰⁵ Thus, while NGOs or any entity can file a climate change action through human rights before the ECOWAS Court even when they do not have an interest that can suffer; a flexible construction of victim status by the ECtHR in light of the peculiarity of climate change whose impact often affects large number of population; may produce the same outcome. ¹⁰⁶

While standing implies the competence of an entity to file an action, a competent entity must maintain an action against another entity. In this instance, it is pertinent to consider entities that can be sued. This is because states and companies have mostly been the defendants in a human rights cum climate change action. As of 2021, 112 human rights cases have been filed on climate change in different parts of the world including the United States. Of these figures, 29 cases were filed in 2020 alone while five were filed up to May 2021. ¹⁰⁷ But 93 of these cases were brought against the government while 16 were brought against companies. ¹⁰⁸ There is no doubt that member states of ECOWAS can be sued. However, the jurisprudence of the Court tends to imply that non-state actors such as individuals and companies cannot be sued. Thus, a horizontal application of human rights is not permitted. In Peter David v Ambassador Ralph Uwechue, ¹⁰⁹ SERAP v The President of the Federal Republic of Nigeria ¹¹⁰ and Tandja v Djibo and Another, ¹¹¹ the ECOWAS Court held that only member states can be sued and that individuals and companies cannot be sued. In Uwechue where the Court stated its reasoning in details, the Court stated that construing Article 9 of the Protocol on Community Court of Justice as amended by Article 3 of the Supplementary Protocol would supplant domestic jurisdiction and lead to a floodgate of cases before the ECOWAS Court. ¹¹² The Court added that allowing an action against an individual is contrary to what generally obtains before international tribunals on human rights. ¹¹³

But the reasoning of the ECOWAS Court is far from being persuasive let alone convincing. First, Article 9 as amended by Article 3 of the Supplementary Protocol stipulates that ‘The Court has jurisdiction to determine case of violation of human rights that occur in any Member State’. This provision justifies the inference that any entity can be sued before the Court. ¹¹⁴ In addition, in the Revised ECOWAS Treaty, it is stipulated that the judgement of the ECOWAS Court ‘shall be binding on the Member States, the Institutions of the Community and on individuals and corporate bodies.’ ¹¹⁵ This implies that corporate entities are envisaged to be sued and judgement obtained against them enforced. Secondly, the above-referenced decisions did not consider the role of the Court as an instrument of economic integration within which its human rights jurisdiction is exercised. In other words, the ECOWAS Court is considered simply as a human rights court separate and distinct from its integrative role. ¹¹⁶ Since individuals while engaging in economic transactions in the sub-region are likely to violate one another's human rights or have their rights violated by companies in the course of economic transaction, excluding individuals and companies from being sued is counter-productive to the goal of economic integration. The implication is that different national courts will apply the African Charter in the context of the Revised ECOWAS Treaty differently. Thirdly, there has not been evidence of the so-called floodgate rendering domestic court otiose. In any event, why should the Court be so concerned when the parties to the Revised ECOWAS Treaty have chosen not to insert any provision on exhaustion of local remedies? The Court's reasoning in this respect is to indirectly introduce the exhaustion of local remedies rule.

Fourthly, the practice of other international tribunals is irrelevant. It is the treaty that the Court is to interpret that matters. Fifthly, with respect to climate change action where companies are often the culprits with state complicity; adopting this interpretation will render the express right to a healthy environment ineffective and illusory in light of the contemporary realities of the ECOWAS sub-region. It is worth recalling the dictum of the ECtHR that while the ‘primary purpose of the Convention system is to provide individual relief, its mission is also to determine issues on public-policy grounds in the common interest, thereby raising the general standards of protection of human rights and extending human rights jurisprudence throughout the community of Convention states’. ¹¹⁷ This dictum will serve the ECOWAS Court right within the context of a human rights approach to climate change litigation. In a nutshell, there is nothing precluding individuals and companies from being sued in a human rights climate action before the ECOWAS Court; and litigants as individuals and NGOs may have to fine-tune their strategies.

Jurisdiction

Jurisdiction is the competence of a court to sit on a matter. Article 9 of the Protocol on the ECOWAS Community Court of Justice as amended by Article 3 of the Supplementary Protocol is headed: ‘Jurisdiction of the Court.’ Article 9(4) of the Protocol stipulates that ‘The Court has jurisdiction to determine case of violation of human rights that occur in any Member State.’ In SERAP v Federal Republic of Nigeria and Universal Basic Education Commission, ¹¹⁸ the plaintiff alleged that the Nigerian government through its Universal Basic Education Commission violated the right to quality education, the right to dignity, the right of peoples to their wealth and national resources and the right of peoples to economic and social development contrary to Articles 1, 2, 17, 21 and 22 of the African Charter on Human and Peoples’ Rights. The Nigerian government challenged the jurisdiction of the ECOWAS Court to adjudicate the matter. One of the grounds upon which the jurisdiction of the Court was challenged was that the Compulsory and Basic Education Act 2004 and the Child's Rights Act 2004 were municipal laws of Nigeria and therefore, not a convention or protocol of ECOWAS. The Court held that it could assume jurisdiction on human rights violations in Member States of ECOWAS pursuant to Article 9(4) of the Supplementary Protocol and that in the instant case the violations complained of were all provided for under the African Charter on Human and Peoples' Rights.

Justiciability

Justiciability, as previously noted, is the capacity of an adjudicating body to grant remedy in respect of an injury which has occurred or is likely to occur. The ECOWAS Court has the mandate to enforce the African Charter on Human and Peoples’ Rights. Article 4(g) of the Revised Treaty adopts the African Charter and affirms as one of the fundamental principles of ECOWAS the ‘recognition, promotion and protection of human and peoples’ rights in accordance with the provisions of the African Charter on Human and Peoples’ Rights.’ In SERAP v Federal Republic of Nigeria and Universal Basic Education Commission, ¹¹⁹ Nigeria contended that the educational objective of the Federal Republic of Nigeria as provided for under section 18(1), (2) and (3) of Chapter II of the Nigerian Constitution 1999 was not justiciable and could not be determined by the Court. The Court held that the existence of a right in one jurisdiction does not automatically oust its enforcement in the other; and that each is independent of the other. The Court added that under Article 4(g) of the Revised Treaty, member states of ECOWAS affirmed and declared their adherence to the recognition, promotion and protection of human and peoples’ rights in accordance with the provisions of the African Charter on Human and Peoples’ Rights. In addition, the Court noted that Nigeria was a signatory to the African Charter on Human and Peoples’ Rights and the Revised ECOWAS Treaty and was therefore bound by their provisions.

What the above position of the law implies from the perspective of justiciability is that the ECOWAS Court can address human rights violations by granting remedies within the ambit of the African Charter on Human and Peoples’ Rights. With respect to the protection of the environment, the competence of the ECOWAS Court to grant remedies in terms of the provisions of the African Charter is reinforced by the judgement of the ECOWAS Court in SERAP v Federal Republic of Nigeria. ¹²⁰ In this case, the applicant, an NGO filed an action against Nigeria alleging that Nigeria was complicit in the pollution caused by oil companies in the Niger Delta region of Nigeria by its failure to prevent the pollution and hold accountable the polluters. The ECOWAS Court held that the pollution caused by oil companies in the Niger Delta region of Nigeria and the failure of Nigeria to prevent the pollution and hold accountable the polluters violated the right to a healthy environment of the inhabitants of the region contrary to Article 24 of the African Charter. ¹²¹

In a similar vein, it was alleged before the African Commission on Human and Peoples’ Rights in Social and Economic Rights Action Center (SERAC) and Center for Economic and Social Rights (CESR) v Nigeria, ¹²² that the government of Nigeria directly participated in the contamination of air, water and soil in Ogoniland and thereby harmed the health of the Ogoni people; failed to protect the Ogoni people from the harm caused by the Nigerian National Petroleum Commission (NNPC) and Shell Consortium and facilitated the harm through the repressive use of its security forces; and failed to permit studies of potential or actual environmental and health risks caused by oil operations in Ogoniland. ¹²³ It was contended that the actions and omissions of Nigeria were in violation of Articles 2, 4, 14, 16, 18(1), 21 and 24 of the African Charter. ¹²⁴ The African Commission found that Nigeria indeed violated these provisions. ¹²⁵ In particular, the Commission stated that Nigeria's actions and omissions violated Article 16 on human right to health and Article 24 on the right to a healthy environment. With respect to Article 24, the Commission noted that states are required to take reasonable and other measures to prevent pollution and ecological degradation, to promote conservation, and to secure an ecologically sustainable development and use of natural resources. ¹²⁶

Since the African Charter tends to recognise the protection of the environment as a human right through Articles 4, 16, 20 and 24, and the ECOWAS Court has given effect to this right by granting remedies on it; it follows that it can do so in a climate change action since climate litigation seeks to protect the environment by seeking a mitigation of greenhouse gases, adaptation to the impacts of climate change or compensation to injury suffered occasioned by climate-related activities. While the recognition of a human right to a healthy environment makes this argument plausible, this is unlike the position under the jurisprudence of the ECtHR. Under its jurisprudence, general deterioration of the environment is not sufficient as environmental damage must give rise to a violation of the right to private or family life under Article 8 of the ECHR. This is understandable since the ECHR does not directly recognise the right to a healthy environment unlike the African Charter. In Di Sarno et al v Italy, ¹²⁷ the ECtHR held that remedies can be granted in respect of environmental damage only when there is a violation of the right to private or family life. ¹²⁸ Similarly, the ECtHR in Hatton et al v United Kingdom ¹²⁹ held that there is no explicit right in the ECHR to a clean and quite environment, but where an individual is directly and seriously affected by noise or other pollution, an issue may arise in respect of the right to private and family life under Article 8. ¹³⁰ The Court, however, noted in Greenpeace et al v Germany ¹³¹ that while severe environmental pollution may affect individuals’ well-being and prevent them from enjoying their homes and thus affect their private and family life, their health may not be seriously endangered.

Enforcement, compliance and impact

In the Revised ECOWAS Treaty, it is acknowledged that each member state ‘undertakes to honour its obligations under this Treaty and to abide by the decisions and regulations of the Community’ ¹³² and that each of them ‘shall, in accordance with its constitutional procedures, take all necessary measures to ensure the enactment and dissemination of such legislative and statutory texts as may be necessary for the implementation of the provisions of this Treaty.’ ¹³³ It is further stipulated that the judgement of the ECOWAS Court ‘shall be binding on the Member States, the Institutions of the Community and on individuals and corporate bodies’. ¹³⁴

In the Protocol to the Community Court of Justice, it is provided that the decisions of the Court ‘shall be final and immediately enforceable’ ¹³⁵ and that all member states together with the Institutions of the Community ‘shall take all necessary measures to ensure execution of the decision of the Court’. ¹³⁶ Under the Supplementary Protocol, the judgements of the Court that have ‘financial implications for nationals of Member States or Member States are binding.’ ¹³⁷ The execution of the decision of the Court shall be done by a member state in accordance with its rule of civil procedure once the Registrar of the ECOWAS Court submits a writ of execution in respect of that decision. ¹³⁸ Once the appointed authority has verified the writ and confirmed that it is from the Court, the writ shall be enforced. ¹³⁹ Each member state is entitled to determine its authority for receiving and processing the writ. ¹⁴⁰ Only the ECOWAS Court may suspend a writ in execution of its own judgement and it has to be done by the Court's own decision. ¹⁴¹ In light of the position of the Revised ECOWAS Treaty, the Protocol on the Community Court and the Supplementary Protocol, the decisions of the ECOWAS Court on human rights cum climate change action can be enforced in the member states.

But the enforcement of the judgements of the ECOWAS Court has faced some hurdles. In the face of these hurdles, it has been suggested that ECOWAS judgements could be enforced through common law on the enforcement of foreign judgements by the domestic court ¹⁴² or through the relevant civil procedure of the domestic court. ¹⁴³ With respect to the use of common law, it is stated that the meaning of the word ‘foreign’ may be extended to include ‘international’ such that foreign judgement which is ordinarily interpreted to mean the judgement of the municipal court of another country would be extended to include judgement of an international tribunal like the ECOWAS Court. What this implies is that ECOWAS judgements on human rights application with respect to climate change can be enforced through common law or civil procedure in the courts of the member states.

But if enforcing the judgements of the ECOWAS Court will have to rely on domestic courts, why should recourse be had to the ECOWAS Court in the first place? First, having recourse to the ECOWAS Court might be necessary to draw international attention and later reliance on the domestic court for enforcing the judgement does not defeat the purpose. James Gathii states that ‘human rights litigation in…[international courts] is part of a broader strategy of political mobilisation that is giving voice to actors who did not have such legal recourse to advance their claims in the past. This mobilisation is particularly important because discredited political institutions – parties, legislatures, and executives – are not regarded as avenues for addressing the concerns of ordinary citizens in their own national jurisdictions at the moment.’ ¹⁴⁴ With this, the concerned member state of ECOWAS might be impelled to change its laws or policies or behaviour with respect to climate change issues. In fact, a specific judgement may not be complied with by a state, yet the state concerned may later change its behaviour. This has even been found to be the case with the ECOWAS Court. ¹⁴⁵ As previously stated, ECOWAS Court ‘enjoys the grudging respect of ECOWAS member states and is not summarily dismissed by even the most recalcitrant states.’ ¹⁴⁶

It is noteworthy that compliance with the judgement of an international tribunal, nay ECOWAS Court, may manifest in different forms. (1) a judgement may be complied with by paying compensation where ordered. (2) sometimes a judgement may not be directly complied with but subsequent occurrence of what led to the case may be avoided. In this instance, there is a change in behaviour even though nothing has changed in terms of laws and policies of the state concerned. (3) while a judgement may not be directly complied with, the state concerned may change its policy or amend its laws to avoid an occurrence of what led to the previous case. In this instance, there is a change in policy and law and of course the behaviour of the state. ¹⁴⁷ There is every reason to suggest that a climate change action before the ECOWAS Court can impel a change before the member states because about 55% of the judgement of the court has been found to have been complied with by member states. ¹⁴⁸ While this percentage may not warrant an applause, nonetheless, the situation of non-compliance is not a completely hopeless one.

Secondly, an applicant who is injured by a member state in a climate-related activities but does not trust the legal system of that member state may have recourse to the ECOWAS Court and having obtained judgement of that Court may have recourse to the legal system of another member state to enforce that judgement if the member state against which the judgement is obtained has properties not being used for diplomatic purposes in the member state in which the judgement is to be enforced. Thirdly, it may be possible for an applicant to enforce judgement in a climate-related activities against multi-national companies who may have properties in more than one member states. Multi-national companies are extremely powerful and some of them are stronger than the state within which they operate. Therefore, a supra-national tribunal like the ECOWAS Court may be a common platform within which their citizens can obtain justice in a climate related activities. ¹⁴⁹

Conclusion

This study examined a human rights approach to climate litigation before the ECOWAS Court. It was found that climate change could be litigated through tort, common law, statute/policy, public trust doctrine or human rights among others; but that there were some developments in certain jurisdictions that had made a human rights approach promising in terms of locus standi, justiciability, causation, and separation of powers which could be related to the jurisprudence of ECOWAS Court. It was also found that the doctrine of the exhaustion of local remedies did not apply to ECOWAS Court and that an action could be filed before that Court without first having recourse to domestic legal system. Based on these findings, it was argued that a human rights approach could be successfully deployed to litigate climate change before the ECOWAS Court and that it could wake up West African States from their lethargy in terms of policy on, and treatment of, climate issues. It was envisaged that individuals and NGOs might have to consider a human rights approach before the ECOWAS Court to influence policy change and/or state behaviour in West African States.