Towards effective realisation of the right to a satisfactory environment in the African Charter on Human and Peoples' Rights: a case for domestic horizontal application

[摘要] Although the African Commission recognised that non-state actors (in this case the transnational corporations (TNCs)) contributed to the violations that prompted the SERAC communication, it failed to hold the TNCs accountable for the violations. The Commission rather held the state party responsible [for] failing to prevent the violations in its territory. The reason for the failure of the Commission to hold the non-state actor accountable is obvious. As Anderson has noted, 'conventional jurisprudence contends that human rights are enforceable only against the acts of omissions of the state rather than the acts of private entities'. Consequently, especially in international fora, violations by non-state actors have gone largely unaccoutned for. Hence, commentators have argued in favour of seeking an appropriate regime for holding non-state actors accountable for such violations, some arguing for horizontal application at international fora. However, non-state actors lack the status to allow Charter institutions exercise jurisdiction over them. This leaves the option of domestic systems as fora for their accountability. Thus, the emerging principle of horizontal applicability of human rights in domestic jurisdictions and the assumption of independent judiciaries provide the premises for this study. ... Chapter 1 contains a general overview of the study. In Chapter 2, the essay examines the scope and content of the right to a satisfactory environment as contained in the African Charter. Chapter 3 examines the existing framework for the realisation of the right to a satisfactory environment under the African Charter. The SERAC case is considered briefly in this chapter as an example of the difficulty to arrest non-state actor violations in the existing framework. Chapter 4 presents the case for horizontal application of article 24 of the African Charter at the domestic level as a complimentary approach to realisation of the right. The debate on horizontal applicability of human rights is highlighted to show that it is not yet widely accepted but it is presented as a basis for this option. The recent Nigerian case of Gbemre v SPDC is examined as an example of the possibility of horizontal applicaton of the article 24 right in a domestic tribunal. Chapter 5 summarises the conclusions from the study and makes recommendations in support of applying the African Charter based right horizontally in domestic courts. -- Introduction.

[发布机构] University of Pretoria