Saving the Serengeti: Africa’s New International Judicial Environmentalism
This Article analyses recent environmental law decisions of Africa’s fledgling international courts. In 2014, for example, the East African Court of Justice stopped the government of Tanzania from building a road across Serengeti National Park because of its potential adverse environmental impacts. Decisions like these have inaugurated a new era of enhanced environmental judicial protection in Africa. This expansion into environmental law decision-making by Africa’s international trade courts contrasts with other international courts that are designed to specialize on one issue area such as human rights or international trade, but not both. By contrast, Africa’s international courts are simultaneously pushing the boundaries of judicial enforcement not only of international environmental law, but also of international human rights.
Three major developments account for the turn to and expansion towards international judicial environmentalism: First, the decisions of African governments to pursue mega-development projects such as the Serengeti superhighway, large extractive industry operations, or hydro-electric dams without regard to the environment or the interests of local populations. Second, the channeling of resistance against these mega-development projects through international courts by alliances of those directly affected by these mega-development projects at the grassroots level together with global environmental movements. Third, the repurposing of these international courts to begin enforcing environmental norms included in regional trade and human rights agreements as a result of the opportunity provided by the filing of environmental cases.
The fact that NGOs and individuals have standing to bring cases to Africa’s international courts and governments remain committed to pursuing mega-development projects strongly suggests that the trend towards consolidating international judicial environmentalism may continue. Similar cases filed in domestic courts show the continuity and complementarity between national and international courts in environmental law cases. Ultimately, this Article observes that to the extent the cases in Africa’s international courts are filed only against States leaves a huge accountability gap. Private actors responsible for the same kind of environmental damage are not amenable to suit in Africa’s fledgling international courts. This accountability gap for private actors continues an unfortunate legacy that has degraded the environment in many third world countries, including those in Africa.
- I. Introduction
- II. The Rise of Africa’s International Courts and Their Re-Repurposed Mandates
- III. The Serengeti Case and How it Illustrates Environmental Repurposing of Africa’s International Courts
- IV. Judicial Environmentalism in Additional African International Courts
- V. Judicial Environmentalism in Two African National Courts
- VI. Features of International Environmental Judicialism and Its Theoretical Implications
- VII. Conclusions
I. Introduction
TOPIn June 2014, the First Instance Division of the East African Court of Justice (EACJ) issued a permanent injunction barring the government of Tanzania from building a road across the Serengeti National Park, a United Nations Educational, Scientific and Cultural Organization (UNESCO) world heritage site.1
African Network for Animal Welfare (ANAW) v. The Attorney General of the United Republic of Tanzania, Ref. No. 9 of 2010, Judgment, East African Court of Justice at Arusha First Instance Div. ¶ 64 (June 20, 2014), http://eacj.org/wp-content/uploads/2014/06/Judgement-Ref.-No.9-of-2010-Final.pdf[hereinafter ANAW v. Tanzania].
Attorney General of the United Republic of Tanzania v. African Network for Animal Welfare (ANAW), Appeal No. 3 of 2014, Judgment, East African Court of Justice at Arusha Appellate Division (July 29, 2015), http://eacj.org/?cases=the-attorney-general-of-the-united-republic-of-tanzania-vs-african-network-for-animal-welfare[hereinafter Tanzania v. ANAW II].
These new environmental cases simultaneously expose the possibilities and limits of judicial environmentalism—the possibilities because they have issued unprecedented decisions protective of the environment when government conduct violates treaty-protected environmental rights, and the limits because the final outcomes of these decisions are at this point unlikely to severely dent the commitment of African governments to pursue mega-development projects. What is surprising is that these international courts have not shied away from announcing extremely broad and significant remedies often carefully hedged with limitations to protect the courts from political backlash against their expansive judicial environmentalism.
This Article proceeds as follows: Part II reviews the establishment of Africa’s regional trade integration system and discusses the multiplicity of their objectives, including those relating to environmental protection. I show that while these integration systems were intended to be primarily about opening up regional trade, the courts established within them have been re-deployed, first to become human rights courts and more recently to protect the environment. Part III discusses the Serengeti case which best exemplifies Africa’s judicial environmentalism. It begins by discussing how local and international alliances mobilized to save the Serengeti, a UNESCO world heritage site, through judicial environmentalism in the EACJ. It discusses how the government of Tanzania responded to the litigation. Part IV discusses two other important decisions of Africa’s international courts—Socio-economic Rights and Accountability Project (SERAP) v. Federal Republic of Nigeria3
Socio-economic Rights and Accountability Project (SERAP) v. Federal Republic of Nigeria, Court of Justice of the Economic Community of West African States (Dec. 14, 2012) [hereinafter SERAP v. Nigeria].
Social and Economic Rights Action Center (SERAC) and Center for Economic and Social Rights (CESR) v. Nigeria, 155/96, African Commission on Human and People’s Rights [Afr. Comm’n H.P.R.], (Oct. 27, 2001) [hereinafter SERAC v. Nigeria].
Part V discusses some particularly important national judicial decisions from Kenya and Zambia that have international dimensions in order to show the continuous nature of the international environmental judicialism of Africa’s international courts with national courts as well as to complete the picture on Africa’s new environmental judicialism and its limits.
Part VI discusses judicial environmentalism’s features and theoretical implications. Here, I discuss how judicial environmentalism represents yet another redeployment of African international courts following their earlier redeployment from trade to human rights cases. This part also critically assesses the prospects of this environmental judicialism for Africa’s fledgling international courts and for the enforcement of international environmental law.
Africa has eight functioning international courts.5
These are: the African Court of Human and Peoples Rights, see Organization of African Unity (OAU), see Protocol to the African Charter on Human and People's Rights on the Establishment of an African Court on Human and People's Rights, 10 June 1998; the East African Court of Justice (EACJ, see Treaty for the Establishment of the East African Community, art. 24, Nov. 30, 1999, 2144 U.N.T.S. 255 (providing at Article 9(1)(e) for the establishment of the EACJ); the Southern Africa Development Community Tribunal (“SADC Tribunal”), which is currently suspended but in the process of reconstitution, see Protocol on the Tribunal and Rules thereof (2000), arts. 15 & 16 (2000 Protocol), available at http://www.sadc.int/files/1413/5292/8369/Protocol_on_the_Tribunal_and_Rules_thereof2000.pdf;the Economic Community of West Africa Court of Justice (ECCJ),see Supplementary Protocol A/SP1/01/05 Amending the Preamble and Articles 1,2,9 and 30 of Protocol (A/P.1/7/91) Relating to the Community Court of Justice and Article 4 Paragraph 1 of the English Version of the English Version of the Said Article, January 19, 2005 available at http://www.courtecowas.org/site2012/index.php?option=com_content&view=article&id=53&Itemid=9;the Common Market for Eastern and Southern Africa Court of Justice (“COMESA Court of Justice”) see Treaty Establishing the Common Market of Eastern and Southern Africa art. 7, Dec. 8, 1993, 2314 U.N.T.S. 265; the OHADA Common Court of Justice and Arbitration, see Traité portant révision du Traité relatif à l'Harmonisation du Droit des Affaires en Afrique, adopté le 17/10/2008 à Québec (Canada) available at http://www.ohada.com/traite/10/traite-relatif-a-l-harmonisation-en-afrique-du-droit-des-affaires.html;the Common Market for Central Africa Court of Justice (“CEMAC Court of Justice”), see Traité constitutif CEMAC, Article 2, www.Droit-Afrique.com;and the Court of Justice of the West African Economic and Monetary Union (WAEMU), see Traité de l'Union Economique et Monétaire Ouest-Africaine available at http://www.worldtradelaw.net/document.php?id=fta/agreements/waemufta.pdf.The Arab Maghreb Union does not have a functional court yet. See Karen J. Alter, The New Terrain of International Law: Courts, Politics, Rights 99 (2014). This proposal also includes the African Commission on Human and Peoples Rights, which, though not formally a court, exercises quasi-judicial functions, and its decisions have been heavily relied upon by African sub-regional courts. This count also excludes the International Criminal Tribunal for Rwanda which is now undergoing dissolution and was established under United Nations Security mandate and the Special Court for Sierra Leone that has received considerable scholarly attention including book-length treatments.
Alter, supra note 5, at 99.
Id. at 98 (noting that these courts are “fairly new”).
For an extensive analysis, see James Gathii, African Regional Trade Agreements as Legal Regimes 264–97 (2011).
Alter, supra note 5, at 151 (noting that most African courts emulate the European Court of Justice).
For the East African Court of Justice, see James Gathii, Mission Creep or a Search for Relevance: The East African Court of Justice's Human Rights Strategy, 24 Duke J. Comp. & Int’l L. 249 (2013).
Although these courts were established as regional trade courts, three of them have primarily decided human rights cases—the East African Court of Justice the Southern African Development Community Tribunal (“SADC Tribunal”), and the West African Community Court of Justice (“ECOWAS Court”); the latter is the only one with an explicit jurisdictional mandate to decide human rights cases.11
Karen J. Alter et al., A New International Human Rights Court for West Africa: The ECOWAS Community Court of Justice, 107 Am. J. Int’l L. 737, 776–77 (2013); see also Solomon Eboborah, The Role of the ECOWAS Community Court of Justice in the Integration of West Africa: Small Strides in the Wrong Direction? (iCourts, Working Paper, No. 27 (June 2015)), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2621453.
James Gathii, Sub-Regional Court or Employment Tribunal? The Legacy and Legitimacy of the Case-Law of the COMESA Court of Justice 2001-2015, forthcoming in Helene Ruiz Fabri et al., The Legitimacy of International Trade Tribunals (2015).
Gathii, Mission Creep, supra note 10, at 295–96.
The growth of jurisdiction over human rights in a sub-regional trade court in Africa is surprising, because national courts are subordinated to powerful executives.14
Paul Brietzke, Private Law in Ethiopia, 18 J. Afr. L. 158 (1974).
Kwesi Prempeh, A New Jurisprudence for Africa, 10 J. Democracy 135 (1999).
Gathii, Sub-Regional Court or Employment Tribunal?, supra note 12.
Alter et al., supra note 11, at 778 (arguing that litigation in sub-regional courts “provides a corrective to the limited avenues of legal recourse available to victims of human rights abuses in Africa”).
Judicial environmentalism represents a second repurposing of Africa’s international courts. They were initially repurposed from trade to human rights courts and now they are being repurposed to serve the additional function of adjudicating environmental cases. Decisions such as Serengeti v. Tanzania, SERAP v. Nigeria, and SERAC v. Nigeria show that environmental interest groups have learned from human rights lawyers who successfully transformed these courts from their original mission of adjudicating trade to deciding human rights cases. Thus, as I demonstrate in this paper, domestic and international environmental interest groups worked together on a litigation and publicity campaign that has mimicked that of human rights activists in persuading these courts to decide environmental cases.
Africa’s international courts are not the traditional international style courts in which only states can sue states and where jurisdiction is consensual. These new courts have compulsory jurisdiction to decide whether particular law or conduct is consistent with the applicable treaty, and they allow private litigants to initiate litigation.18
Alter, supra note 5, at 5.
For example, in the ECOWAS Court of Justice, since 2005, individuals have been able to bring cases challenging human rights violations under the African Charter on Human and Peoples’ Rights. However, individuals do not have a direct right of access to the court to file cases of violation of ECOWAS trade rules. Only a preliminary reference by a national court or by the ECOWAS Commission or a Member State can initiate such a case. See Alter et al., supra note 11, at 753–758.
One of the most successful of these courts is the European Court of Justice, which in 2014 received 56,300 cases and 65,800 cases in 2013. European Court of Human Rights, Annual Report of the European Court of Human Rights 170 (March 2015), http://echr.coe.int/Documents/Report_2014_ENG.pdf.
In East Africa, lawyers prevailed in persuading the EACJ to read preambular provisions referring to human rights of the Treaty for the Establishment of the East African Community in a manner that conferred the court jurisdiction to use these provisions to establish a cause of action for human rights violations.21
Gathii, supra note 8, at 279.
See Treaty for the Establishment of the East African Community, art. 27(2), Nov. 30, 1999, providing that at a future date, the Council of Ministers may extend the jurisdiction of the Court to include human rights. To date no such extension has been granted.
Gathii, supra note 8, at 288–90.
See Article 1 of the Understanding on Rules and Procedures Governing the Settlement of Disputes (The DSU or Annex 2, Agreement Establishing the World Trade Organization), DSU, Dispute Settlement Rules: Understanding on Rules and Procedures Governing the Settlement of Disputes, Marrakesh Agreement Establishing the World Trade Organization, Annex 2, THE LEGAL TEXTS: THE RESULTS OF THE URUGUAY ROUND OF MULTILATERAL TRADE NEGOTIATIONS 354 (1999), 1869 U.N.T.S. 401, 33 I.L.M. 1226 (1994) (providing that “[t]he rules and procedures of this Understanding shall apply to disputes brought to the consultation and dispute settlement provisions of agreements listed in Appendix 1 to this Understanding”). Appendix 2 includes only Agreements negotiated by WTO Members and does not include non-WTO treaties such as those relating to international human rights. Further, Article 3.2 of the DSU provides that the WTO’s dispute settlement system is intended to preserve the rights and obligations of members under the covered agreements.
ETS 5; 213 UNTS 221
By contrast, international trade courts, such as the Panels and the Appellate Body of the WTO, can only entertain cases relating to trade, not those raising questions such as whether or not there are violations of regional human rights, international human rights or other non-WTO treaties.26
Joel Trachtman, The Jurisdiction of the World Trade Organization, 98 Am. Soc'y Int'l L. Proc. 141 (arguing that it “only WTO law, not general international law, constitutes substantive law capable of application in WTO dispute settlement.”).
Aljandro Saiz Arnaiz & Dra. Aida Torres Perez, “Main Trends in the Recent Case Law of the European Court of Justice and the European Court of Human Rights in the Field of Fundamental Rights,” European Parliament (2012) (finding 57 cross references in the human rights case law of the two courts between 2010 and 2011).
For more on the relationship between the European Court of Justice and the European Court of Human Rights, see Anthony Arnull, The European Union and Its Court of Justice 367 (2006) (noting in part that since the European Union is not itself a party to the Council of Europe, it is not bound by the European Convention on Human Rights).
For more, see James Gathii, The Variation in the Use of Sub-Regional Integration Courts between Business and Human Rights Actors: The Case of the East African Court of Justice, 79 L. & Contemp. Probs. (forthcoming 2016).
Laurence R. Helfer, Sub-Regional Courts in Africa: Litigating the Hybrid Right to Freedom of Movement, (iCourts Working Paper, No. 32, 1‑25 (2015)), http://ssrn.com/abstract=2653124.
These cases have defied the traditional paradigm of international trade courts of deciding trade cases and leaving human rights cases to human rights courts. In international law, this paradigm-upsetting move of African International Trade Courts accepting human rights cases reflects a breakdown of a pervasive distinction between courts that have exclusive economic mandates, on the one hand, and courts that have exclusive mandates over human rights issues on the other. The framers of the post-World War II era consciously distinguished international institutions falling on the economic side (such as the World Bank, International Monetary Fund and the then General Agreement on Tariffs and Trade), from those falling on the political side (primarily the U.N.).31
See James Gathii, Good Governance as a Counter Insurgency Agenda to Oppositional and Transformative Social Projects in International Law, 5 Buff. Hum. Rts. L. Rev. 107, 159 n.104 (1999).
This design distinguishing political from economic institutions was selected because of the belief that it was necessary to insulate economic institutions from the interference of political matters.32
Id. at 159.
Id. at 154.
Id.
In Europe, the European Court of Justice primarily entertains cases arising under European Union law, whereas the European Court of Human Rights entertains cases asrising from the European Convention on Human Rights. In the Americas, the Inter-American Court of Human Rights entertains cases under the American Convention on Human Rights, whereas trade disputes are the purview of the various regional dispute settlement mechanisms set up under regional trade agreements such as the North American Free Trade Agreement (NAFTA). In Africa, the African Court of Human and Peoples’ Rights has jurisdiction over cases arising from the African Charter on Human and Peoples’ Rights but no jurisdiction over any trade disputes. Trade disputes are the purview of the respective sub-regional trade courts which are the subject of this paper.
The fact that African international courts share a unique resemblance in combining simultaneous decision-making authority over trade and human rights cases calls for an explanation. Why have African international trade courts decided to effectively turn away from the paradigm of courts exclusively exercising a trade mandate, on the one hand, and courts exclusively exercising a human rights mandate on the other? In other words, why have African courts become hybrid courts? Africa’s international courts could very well have justified resisting expansive interpretations on the basis of lack of explicit jurisdiction or by invoking technicalities such as admissibility—as African national judiciaries often do when they do not want to anger governments.36
Rachel Ellet, Emerging Judicial Power in Transitional Democracies: Malawi, Tanzania and Uganda 347‑48 (1998) (Ph.D. dissertation, Northeastern University) (discussing the timidity of the Tanzanian judiciary).
Ruti Teitel offers a very plausible suggestion. She asks a question pertinent to this discussion and then answers it:
How does judicial discourse shift power by empowering non-state actors, who in turn, by addressing themselves in various ways to international courts and tribunals and being addressed by them, become agents of legitimacy? International courts and tribunals are well situated to supply a rights-based discourse at least partly detached or autonomous from national political cultures and constitutionalisms – universalizable, secular, transnational – and with the authority of high human values.37
Teitel further argues quite persuasively that:
[i]n a world that is interdependent but not integrated there quite simply may be a need for a potentially universalizable discourse that can still function in a context of difference between persons and peoples, one that comprehends wrongdoing and atrocities, and can be diffused through multiple institutions that would otherwise be isolated or fragmented – a discourse that allows recognition of individual rights and attribution of individual responsibility and accountability with or without the state, hence arguably allowing for some change. International adjudicators are better situated that many other international institutions to supply this discourse and the discourse is arguably a source of self-legitimization for international courts and tribunals.
Ruti Teitel, LJIL Symposium: A Consideration of “On the Functions of International Courts: an Appraisal in Light of Their Burgeoning Public Authority," Opinio Juris, (Apr. 9, 2013), http://opiniojuris.org/2013/04/09/ljil-symposium-a-consideration-of-on-the-functions-of-international-courts-an-appraisal-in-light-of-their-burgeoning-public-authority/.
In other words, these courts offer a set of rules that are not dependent on national legal orders to be invoked and relied upon by private actors. If Africa’s international courts depended on national legal orders for cases to be brought, it is likely they would have few to no cases.38
For example, in West Africa, cases alleging a violation of ECOWAS trade rules must be referred to the ECCJ by national courts. So far, no such cases have been referred to the ECCJ. See Alter et al., supra note 11 at 774–75 (discussing the choice in giving human rights cases direct access to the ECCJ and only indirect access for economic cases because of the requirement of a national reference is a political choice member states made in ECOWAS that has resulted in fewer cases to the Court). In East Africa, there is only one instance of a referral of cases from national courts to the EACJ. Samuel Mukira Muhochi v. The Attorney General of the Republic of Uganda, Ref. No. 5 of 2011, East African Court of Justice at Arusha (May 17, 2013) (seeking a preliminary ruling on the interpretation and application of Articles 6(d), 7(2) and 124 of the EAC Treaty, which were at issue in the High Court of Kenya).
Notably, not all of Africa’s international courts have repurposed their mandates to include deciding human rights or environmental cases as those in East, West and Southern Africa have. For example, the Common Market for Eastern and Southern African (COMESA) Court of Justice has largely remained an industrial tribunal.39
Gathii, Sub-Regional Court or Employment Tribunal?, supra note 12.
Id.
Id.
Id.
Id.
III. The Serengeti Case and How it Illustrates Environmental Repurposing of Africa’s International Courts
TOPIn June 2014, the first Instance Division of the EACJ delivered an audacious and unprecedented decision. Audacious because as a regional court it was exercising authority to essentially reverse the decision of a sovereign government to build a road within its own borders, and unprecedented because it is the first decision, as far as I can tell, in which an international court invoked international environmental rules to prohibit a government from undertaking a project because to do so would be inconsistent with those rules. To fully appreciate the significance of that decision, this part of the essay will begin by discussing how Tanzania transformed from a socialist country that valued its environment and eschewed big development projects to a market-oriented economy in which big-development projects that have or are likely to have large adverse impacts on the environment are now the norm. It is this turn from a commitment to environmental conservation towards neo-liberal market reforms that brought together local communities opposed to the road across the Serengeti National Park with international environmental groups. One of their strategies became using the EACJ in their opposition to the road project. Thereafter the essay discusses the various phases of the Serengeti case in the EACJ.
The Serengeti National Park, located in Tanzania, is a one and one-half million-hectare park designated by UNESCO as a world heritage site because of its pristine natural habitats, wildlife populations, rich biodiversity, and status as a critical ecosystem in East Africa.44
UNESCO designates a place a world heritage site because of its cultural or natural significance as defined under the 1972 Convention Concerning the Protection of World Cultural and Natural Heritage. UNESCO, Serengeti National Park, UNESCO World Heritage Ctr., http://whc.unesco.org/en/list/156.
In the 1990’s, Tanzania’s commitment to environmental conservation and preservation ended as its political leadership abandoned the socialist commitment to central planning and environmental conservation and adopted a market-centered, neo-liberal development agenda.45
Michael Chege, Swapping Development Strategies: Kenya and Tanzania After Their Founding Presidents, Political Development and the New Realism in Sub-Saharan Africa 247, 250 (David E. Apter & Carl G. Rosberg eds., 1994).
UNESCO, supra note 45.
Jeffrey Gettlemen, Serengeti Road Plan Offers Prospects and Fears, N.Y. Times (Oct. 31, 2010), http://www.nytimes.com/2010/10/31/world/africa/31serengeti.html.
ANAW v. Tanzania, supra note 1, at ¶ 22. Among the ideas the government invoked in building the road was the argument that it would lower transportation costs between Mugumu and Loniondo Centers. Id.
On Tanzania’s opposition, see generally Barak Hoffman & Lindsay Robinson, Tanzania’s Missing Opposition, 20 J. of Democracy 123 (2009) (discussing how CCM suppresses any opposition to its near-monopoly of power).
Building the road across the Serengeti therefore symbolizes the stakes between two discordant Tanzanian identities: one as the nation of African socialism, idealized by “its founding father” and first President, Julius Nyerere, as free from corrupting foreign investment and centered on agricultural production;50
Tanzania: Kikwete Support Will Spur Serengeti Road, Oxford Analytica Daily Brief (Oct. 1, 2010).
For an account of President Kikwete’s development plans, see The United Republic of Tanzania President’s Office, Planning Commission, The Tanzania Five Year Development Plan 2011/2012-2015/2016: Unleashing Tanzania’s Growth Potentials (June 2011), http://www.tzdpg.or.tz/fileadmin/_migrated/content_uploads/FYDP-2012-02-02.pdf.
As a socialist, one of the principal aims and objectives of Nyerere’s platform was to ensure that the government exercised “effective control over the principal means of production and [pursued] policies which facilitate the way to collective ownership of [Tanzania’s] resources.”52
Julius K. Nyerere, The Arusha Declaration, in Ujamaa – Essays on Socialism 13, 15 (1968).
Id. at 29.
Julius K. Nyerere, The Purpose is Man, in Ujamaa – Essays on Socialism 91, 96 (1968).
Nyerere, The Arusha Declaration, supra note 52, at 25–26.
Mellowswan Foundation Africa-Tanzania, Conservation Critical to Tanzania’s Future (Aug. 17, 2010), http://mellowswanafrica.org/arusha-manifesto/.
Id.
Id.
Yet, however well intended Nyerere’s commitment was to development through socialism, Tanzania’s economy stagnated with only 0.2% growth in real per capita GDP between 1976 and 1984.59
Chege, supra note 45, at 247, 250.
Id. at 268‑89, 272‑73.
Id. at 273.
Id.
In contrast to Nyerere’s ideal of a socialist Tanzania, President Kikwete, who has continued the 1986 market-oriented economic program for Tanzania, relies on foreign government borrowing and assistance as well as on foreign investors to develop Tanzania’s infrastructure, exploit its natural resources, and spur its economy.63
Gov’t Now Views Private Sector as Engine for Growth, AllAfrica.com (Aug. 7, 2014), ProQuest, Doc. Id. 1551757694.
Reflecting on Kikwete’s Five Year Development Plan, AllAfrica.com (Dec. 22, 2011), ProQuest, Doc. Id. 912475367.
Kikwete Talks Tough on Roadblocks, AllAfrica.com (Mar. 22, 2015), ProQuest, Doc. Id. 1665313752.
George Omondi, Kenya, Tanzania Experts Differ on Serengeti Road Plan, Business Daily (Aug. 21, 2013), http://www.businessdailyafrica.com/Kenya-and-Tanzania-experts-differ-on-Serengeti-road-plan/-/539546/1962852/-/11njmi3z/-/index.html.
NGOs Attack Kenya Over Serengeti Highway, AllAfrica.com (Apr. 30, 2012), ProQuest. Doc. Id. 1010288354.
President Kikwete has also announced plans to transform the port at Dar es Salaam into a major regional transport center connecting the county and its landlocked neighboring countries to the rest of the world.68
Edmund Blair & Fumbuka Ng’Wanakilala, Tanzania President Maps Out Plans for Transport Hub, Reuters Summit (Apr. 11, 2014, 2:18 PM), http://www.reuters.com/article/2014/04/11/africa-summit-tanzania-transportation-re-idUSL6N0N346U20140411.
Id.
Alex Ngarambe, Less Delays at Port of Dar as Services are Privatized, Rwanda Today, July 12, 2013, http://www.theeastafrican.co.ke/Rwanda/Business/Less-delays-at-port-of-Dar-as-services-are-privatised-/-/1433224/1912856/-/jfdaoyz/-/index.html.
Id.
Yet, President Kikwete does not wholly disregard agriculture as a means of development; he simply believes that industrial farming will result in exportable outputs.72
Id.
Id.
Maasai Association, The Maasai People, http://www.maasai-association.org/maasai.html.
Jason Patinkin, Maasai Fury as Plan to Lure Arabian Gulf Tourists Threatens Their Ancestral Land, The Guardian, Mar. 30, 2013, http://www.theguardian.com/world/2013/mar/30/maasai-game-hunting-tanzania.
Id.
Additionally, Tanzania’s development plans directly challenge those of the regional economic powerhouse, Kenya. For example, the planned development of the Dar es Salaam port would compete with the port at Mombasa, “east Africa’s main gateway,” and Kenya’s plans to construct a new port at Lamu to transport goods from its own landlocked neighbors to the world.77
Blair & Ng'Wanakilala, supra note 68.
Id.
Tanzania, Burundi to Join “Coalition of the Willing,” Daily Nation, Feb. 25, 2014, ProQuest, Doc. Id. 1501471530.
Id.
Founded in 2006, Africa Network for Animal Welfare (ANAW) is a pan-African non-profit environmental conservation organization based in Nairobi, Kenya.81
African Network for Animal Welfare, Page Info, Facebook, https://www.facebook.com/pages/Africa-Network-for-Animal-Welfare-ANAW/104162487424?sk=info&tab=page_info,last visited Nov, 11, 2015.
African Network for Animal Welfare, Who We Are, ANAW Homepage, http://www.anaw.org/
index.php/about-us/who-we-are.
Id.
Id.
Id.
African Network for Animal Welfare, Our Work: Policies and Legislation, http://www.anaw.org/index.php/programs/policy-legislation;Rachel Cernansky, Turning African Wildlife into Moneymakers Rather Than Dinner, Takepart (Apr. 13, 2015), http://www.takepart.com/article/2015/04/13/freeing-snared-wildlife-kenya-poachers-snares;Bobbie Hasselbring, Hunted To Extinction, The Chronical Magazine (Sept. 29, 2014), http://www.lclark.edu/live/news/28022;ANAW, First FAO Global Multi-Stakeholder Forum on Animal Welfare, http://www.fao.org/fileadmin/user_upload/animalwelfare/ANAW.pdf.
See https://africanetworkforanimalwelfare.wordpress.com/(noting that the case is important).
Saitabao Ole Kanchory, the attorney ANAW hired to bring the Serengeti case against the government of Tanzania, had, prior to being instructed to file the Serengeti case, provided legal advice to ANAW.88
Interview with Saitabao Ole Kanchory, attorney for ANAW, Nairobi, Kenya (Sept. 27, 2015).
Id.
Id.
See John Mbaria, “Win for Conservationists as East African Court Stops Serengeti Road,” The East African, June 21, 2014 available at http://mobile.theeastafrican.co.ke/News/Wildlife-conservation-East-African-Court-stops-Serengeti-road/-/433842/2357172/-/format/xhtml/item/1/-/9tywjq/-/index.html.
ANAW, supra note 88; see also Save the Serengeti—by Africa Network for Animal Welfare—USA, Loveanimals.org, http://www.loveanimals.org/anaw-save-the-serengeti.html.
Serengeti Watch, which I discuss more extensively below, partnered with ANAW in part by providing funding through its Serengeti Legal Defense Fund to ANAW for legal fees and research trips.93
Friends of the Serengeti, The Serengeti Highway Battle Won, the War with the Courts Continues, Africa Geographic (July 30, 2014), http://africageographic.com/blog/the-serengeti-highway-battle-won-the-war-with-the-courts-continue/.
Wouter Vergeer, Travel Association Seek to Save the Serengeti, Safari Bookings Blog (June 27, 2014), https://www.safaribookings.com/blog/158.
Save the Serengeti, supra note 93.
Id.
The international alliance that ANAW brought together in the Serengeti case must be understood as a counterpart to the grassroots organizing around animal welfare issues in Africa that ANAW had been part of before. In addition, the lawyer hired by ANAW to file the case, Saitabao Ole Kanchory, had been involved in filing cases in the Kenyan High Court on environmental conservation on behalf of Maasai communities affected by development projects.97
See Ben Ole Koissaba, Elusive Justice: The Maasai Contestation of Land Appropriation in Kenya; A Historical and Contemporary Perspective, Intercontinental Magazine (Jan. 28, 2015), https://intercontinentalcry.org/elusive-justice-maasai-contestestation-land-kenya/(citing S.O. Kanchory, The Proposed Maasai Land Case Brief: Report Prepared with the Authority upon Commissioning by Maa Civil Society Forum (2006)).
Dr. Kimpei Munei & 59 Others v. the National Land Commission Selection Panel and the Attorney General, Petition 266 of 2012, The High Court of Kenya at Nairobi, Milimani Law Courts (2012).
Omondi, supra note 66.
Id.
ANAW was therefore the glue that brought together mobilized grassroots indigenous communities, on the one hand, and international environmental and conservation groups, on the other, in their efforts to defeat the building of the road.
Although President Kikwete promised to build the Serengeti road in his 2005 election campaign, international mobilization against it did not begin until 2010.101
Gettlemen, supra note 47; Mark Seal, The Fight Over the Serengeti Highway, Departures (Sept. 19, 2013), http://www.departures.com/travel/travel/fight-over-serengeti-highway.
Seal, supra note 102.
Id.
Id.
Id.
Olivia Judson, Road Kill in the Serengeti?, NY Iimes Opinionator Blog, June 15, 2010, http://opinionator.blogs.nytimes.com/2010/06/15/road-kill-in-the-serengeti/?_r=0.
Id.
Andrew P. Dobson, et al., Road Will Ruin Serengeti, 467 Nature 272, 272 (2010).
Id.
Several NGOs became aware of the construction project and began to organize an international response to it.110
Id.
Boyd Norton, Protecting One of the Great Wildlife Reserves on Earth, 30 Earth Island J. 15, 15 (Summer 2015).
Id.
Earth Island Inst., About Us, http://www.earthisland.org/index.php/aboutUs/.
Serengeti Watch, About Us, http://www.savetheserengeti.org/about-us/.
Id.
Vergeer, supra note 95; see also Friends of Serengeti, About Friends of Serengeti, http://friendsofserengeti.org/home-2/about/; Christopher Doyle, Save the Serengeti: An ATTA Call to Action, Adventure Travel News, http://www.adventuretravelnews.com/save-the-serengeti-an-atta-call-to-action.
Friends of Serengeti, About Friends of Serengeti, http://friendsofserengeti.org/home-2/about/.
Tracy McVeigh, Frantic Bid to Save Wildebeest’s Serengeti Refuge, The Observer, Mar. 27, 2011.
Worldwide Opposition to Serengeti Road Has Yet to Sway Tanzanian Government, African Wildlife Foundation (Mar. 15, 2011), http://www.awf.org/news/worldwide-opposition-serengeti-road-has-yet-sway-tanzanian-government.
ANAW filed the case against Tanzania in 2010 seeking a permanent injunction against the government of Tanzania’s proposed construction and maintenance of a 53 kilometer section of the Natta-Mugumu‑Tabora B Kliens Gate‑Loliondo Road (“the Road”) across the Serengeti National Park.120
ANAW v. Tanzania, supra note 1, ¶¶ 1‑2, 5, 17.
Id. ¶ 9.
Id.
Id. ¶¶ 10, 17.
ANAW asked the court for a number of remedies: first, to permanently prevent the Tanzanian government from “maintaining any road or highway across any part of the Serengeti National Park.”124
Id. ¶ 17.
Id. ¶ 17(i).
Id. ¶12.
Id. ¶ 27.
Id. ¶ 19.
Id. ¶ 28.
Id.
The Tanzanian government first filed a jurisdictional challenge and argued that the case was time-barred.131
Id. ¶ 6.
Id.
ANAW, Chronology of ANAW Lawsuit to Block the Highway, Facebook (Feb. 2, 2012), https://www.facebook.com/notes/stop-the-serengeti-highway/chronology-of-anaw-lawsuit-to-block-the-highway/344571812240687[hereinafter ANAW, Chronology].
Id.
Id.
On March 15, 2012, the EACJ Appellate Division ruled in the ANAW’s favor by dismissing the government’s appeal.136
Attorney General of the United Republic of Tanzania v. African Network for Animal Welfare (ANAW), Appeal No. 3 of 2011, 26, Judgment, East African Court of Justice App. Div. at Arusha, (Apr. 26, 2012), http://eacj.huriweb.org/wp-content/uploads/2012/10/Appeal-Ref-No.-3-of-20111.pdf[hereinafter Tanzania v. ANAW I].
ANAW v. Tanzania, supra note 1, ¶ 19.
Id. ¶ 29.
Id. ¶ 44.
ANAW, Chronology, supra note 134.
Tanzania v. ANAW II, supra note 2, ¶ 59 (summarizing lower court’s findings).
Id. ¶ 22–29. The Court cited Article 151 which provides that the protocol “non-conclusion of a protocol does not oust obligations placed on a Partner State by the Treaty itself.” Article 153(1) which the Court cited to buttress its conclusions provides that: “This Treaty and all instruments of ratification and deposit of instruments shall be deposited with the Secretary General who shall transmit certified true copies thereof to all the Partner States.” In addition, there was no evidence that Tanzania or any other Partner State never ratified EACT; however, there was evidence, the Court noted, that Tanzania ratified the Treaty on June 28, 2000. Tanzania was therefore bound by each provision within the EACT according to the court. The Court therefore held that Chapter Nineteen, which relates to the environment, is binding on Tanzania and therefore overruled this as a basis for objecting to the suit.
On whether the applicants were entitled to permanently bar the government of Tanzania from building the road, the court held that if the road project were implemented as originally planned, the effects would be devastating both for the park and neighboring parks, and therefore it shall not be built.143
Id. ¶ 82.
Id.
The government of Tanzania then appealed this decision of the First Instance Division to the Appellate Division.145
Id. ¶ 3.
Id. ¶ 4.
Id. ¶ 3.1.
Id. ¶ 3. Article 111(1)(b) of the Establishment Treaty provides in part that the Partner States shall undertake to take actions “for the protection and conservation of the natural resources and environment against all forms of degradation and pollution arising from developmental activities”; Article 112(1)(e) commits the Partner states to “integrate environmental management and conservation measures in all development activities such as trade, transport, agriculture, industrial development, mining and tourism in the Community”; Article 113 contains commitments on preventing the illegal trade in and movement of toxic chemicals, substances and hazardous wastes; while Article 114(1(a) obliges Partner States to “take necessary measures to conserve their natural resources”.
Id.
Id.
Id. ¶ 5.
Id.
On the question whether the First Instance Division erred in law by enforcing Articles 111–114 of the EACT when those Articles have yet to be negotiated, agreed to, signed, and ratified by all EACT partner states through an appropriate protocol, Tanzania lost the appeal.153
Id. ¶¶ 33–39.
Id. ¶ 22.
Id. ¶ 23.
Id. ¶ 24.
The Appellate Division held that Articles 111–114 of the EAC Establishment Treaty, which relate to environmental obligations, responsibilities, and standards of EAC states, are self-executing and do not require a protocol or other special act, process, procedure or proceeding to establish their enforcement.157
Id. ¶ 25.
Id.
Id.
ANAW also prevailed on the question of whether the First Instance Division had erred in law by considering whether Tanzania had violated non-EAC international environmental declarations and conventions such as the African Convention on the Conservation of Nature and Natural Resources of 2003, the Rio Declaration of 1992, the Stockholm Declaration, the U.N. Convention on Migratory Species of Wild Animals, the U.N. Convention of Biodiversity of 1992, and the U.N. Declaration on the Environment and Development of 1992.160
Id. ¶ 40.
Id. ¶ 47.
Id. ¶ 48.
Id. ¶ 49.
Id.
On the question whether the court has jurisdiction to grant permanent injunctions against sovereign EAC Partner States, the Appellate Division held that the Court had jurisdiction to issue a permanent injunction against EAC Partner States.165
Id. ¶¶ 50–56.
Id. ¶ 51. According to the court, Article 23(1) names the EACJ a “judicial body” with the ability to “ensure” the Partner States adhere to their EACT obligations. Id. ¶ 53. In order to be a judicial body and fulfill its role to hold Partner States accountable to the EACT, the Court must have the attributes of other judicial bodies, such as the ability to grant permanent injunctions. Id. Additionally, Rule 1(2) of the Court’s Rules of Procedure provides that nothing in the Rules may, “limit or otherwise affect the inherent power of the Court to make such orders as may be necessary for the ends of justice,” like a prohibition granting permanent injunctions against Partner States. Id. ¶ 54.
Id. ¶ 55.
The foregoing finding sits in stark contrast to the Appellate Division’s final finding on the question of whether the First Instance Division properly considered Tanzania’s reference challenging the Applicant’s “mere proposal” to construct the Serengeti road.168
Id. ¶ 58–80.
Id. ¶ 64.
Id.
Id. ¶ 67.
Id. ¶¶ 68–70.
Id. ¶ 71.
Id. ¶ 75.
Id. ¶ 76.
Id. ¶ 74.
Id. ¶¶ 75, 79–80.
These findings that ANAW’s case challenged a “mere proposal” to build a road and that it was unactionable sit in sharp contrast to the Appellate Division’s endorsement of ANAW’s case in other respects. For example, in ordering that each party to the case bear their own costs, the Appellate Division noted that ANAW had “partially triumphed in their quest … in this, the first Environmental Case of its kind to be brought before this Court ... They brought the Reference and have prosecuted it not out of any wish for personal, corporate, or private gain; but out of the public spirited interest of the noblest kind – namely preservation of a natural resource which … is truly a gem of a heritage, one-of-a-kind for all mankind.”178
Id. ¶ 81.
A second reason for the murkiness of the Appellate Division’s judgment is that it did not explicitly lift the permanent injunction that was imposed by the First Instance Division.179
Id. ¶ 82.
On the backlash against Africa’s international courts, see Karen J. Alter et al., Backlash Against International Courts in West, East and Southern Africa: Causes and Consequences, Eur. J. Int’l L. (forthcoming 2016).
Interview with Saitabao Ole Kanchory, supra note 89.
Tanzania v. ANAW I, supra note 137, at 11.
Hillary Nsambu, “East African Court of Justice President Bids Farewell,” New Vision, 29th May, 2014 available at https://celebritynewshabari.wordpress.com/2014/05/29/east-africa-court-of-justice-president-bids-farewell/.
This trend may have begun on the human rights side with the Appellate Division cutting back against the expansive holdings of the First Instance Division, see, for example, Omar Awadh and 6 Others v. Attorney General of Uganda, Appeal No. 2 of 2012 at 15 Eastern African Court of Justice App. Div. (Apr. 15. 2013), http://eacj.huriweb.org/wp-content/uploads/2013/09/AG_Uganda_v_Omar_Awadh_and_6_Others.pdf(strictly construing the two month limitation for bringing cases and reversing the invocation of the doctrine of continuing violations adopted by the First Instance Division).
A. Social-Economic Rights and Accountability Project v. Federal Republic of Nigeria185185SERAP v. Nigeria, supra note 3, ¶ 2.
TOPSERAP v. Nigeria, supra note 3, ¶ 2.
Next I discuss, Social-Economic Rights and Accountability Project (SERAP) v. Federal Republic of Nigeria, decided by the ECOWAS Court of Justice in December 2012.186
Id.
Id. ¶¶ 1–2.
Id. ¶ 3.
Id. ¶¶ 6–8.
Id. ¶ 7.
Id. ¶¶ 9–10.
Niger Delta, Wikipedia (Sept. 1, 2015), https://en.wikipedia.org/wiki/Niger_Delta;SERAP v. Nigeria, supra note 3, ¶¶ 12–13.
SERAP v. Nigeria, supra note 3, ¶¶ 12–13.
Id. ¶ 18.
In the case, SERAP sought a declaratory judgment to the effect that the residents of the Niger Delta were entitled to “the internationally recognized human right to an adequate standard of living, including adequate access to food, to healthcare, to clean water, to a clean and healthy environment … and the right to life and human security and dignity.”195
Id. ¶ 19(a).
Id. ¶¶ 19(b)–(d).
Id. ¶¶ 19(c)–(d).
Id. ¶¶ 19(e)–(j).
Although the Federal Republic of Nigeria maintained that the ECOWAS Court of Justice did not have jurisdiction to examine any alleged violations of either the ICCPR or the ICESCR and that only the domestic Nigerian courts could examine these violations, the court held that the Supplementary Protocol that amended Article 39 of the Protocol on Democracy and Good Governance on January 19, 2005 provided that “the Court has jurisdiction to determine cases of violation of human rights that occur in any Member State” and “the rights set up in the African Charter on Human and Peoples’ Rights and other international instruments shall be guaranteed in each of the ECOWAS Member States.”199
Id. ¶¶ 24–27.
Id. ¶ 28.
Id. ¶ 36.
Id. ¶¶ 35–40.
SERAP alleged numerous violations indicative of the nature of litigation in Africa’s fledgling international courts: Articles 1–5, 9, 14–17, and 21–24 of the ACHPR; Articles 1, 2, 6, 9–11, and 12.1–12.2(b) of the ICESCR; Articles 1, 2, 6, 7, and 26 of the ICCPR; and Article 15 of the Universal Declaration of Human Rights (UDHR).203
Id. ¶ 63.
Id. ¶¶ 64–72.
Id. ¶ 64.
Id.
Id. ¶ 65.
Id.
In addition, the plaintiff alleged that the right to health, as defined in Articles 16 and 24 of the ACHPR and in Article 12.1 of the ICESCR, was violated as the Nigerian government failed to promote conditions that allow people to lead healthy lives.209
Id. ¶ 67.
Id.
Id. ¶ 68.
Nigeria responded by denying that oil exploration and production has a direct relation with poverty in the region and by stating that the plaintiff’s allegations are merely speculative.212
Id. ¶ 74.
Id. ¶ 79.
Id.
Id. ¶ 82.
In its decision, the court ruled only with respect to Articles 1 and 24 of the ACHPR, which together outline the obligation of every African nation state to “take every measure” to “maintain the quality of the environment … such that the state of the environment may satisfy the human beings who live there and enhance their sustainable development.”216
Id. ¶ 101.
Id. ¶¶ 107, 98.
Id. ¶ 109.
See id. ¶¶ 106–09.
The court dismissed SERAP’s original petition for the Federal Republic of Nigeria to pay a one billion dollar punitive fee, as it ruled that it would be impracticable to grant pecuniary compensation to individual victims for many reasons.220
Id. ¶¶ 113–17.
Id. ¶ 119.
Id. ¶ 121.
Another case arising from the Niger delta, this time filed before the African Commission on Human and People’s Rights, was filed by another NGO, the Social and Economic Rights Action Center and the Center for Economic and Social Rights against the government of Nigeria more than a decade earlier than the SERAP suit in the ECOWAS Court of Justice.223
SERAC v. Nigeria, supra note 4.
Id. ¶ 1.
Id. ¶ 3.
Id. ¶ 4.
Id.
Id. ¶¶ 5, 7–8.
Id. ¶ 9.
The complaint argued that the foregoing conduct constituted violations of Articles 2, 4, 14, 16, 18(1), 21, and 24 of the African Charter on Human and People’s Rights. This charter contains the parameters of what the African Commission on Human and People’s Rights has jurisdiction over.230
Id. ¶ 10.
Id. ¶¶ 12–34.
Id. ¶¶ 35–42.
Id. ¶¶ 41.
Id. ¶ 50.
Id. ¶¶ 50–53.
Id. ¶ 58.
Id. ¶ 45.
In particular, the Commission held that the Nigerian government not only violated Article 24 of the Charter outlining the human right to a clean environment, but it also violated Article 16 of the Charter with regard to the right to the best attainable state of mental and physical health; Article 14 with regard to the right to property, and; Article 18(1) with regard to the right to the protection of the family.238
Id. ¶¶ 58–67.
Id. ¶ 60.
Id. ¶¶ 61–63.
Id. ¶¶ 65–66.
Id. ¶ 68.
The Commission further required the Nigerian government to ensure the protection of the environment and the health and livelihood of the individuals residing in Ogoniland by stopping all attacks, conducting an investigation into human rights violations, prosecuting those actors who incurred the violations, ensuring adequate compensation to victims of those harms, making sure that appropriate assessments are made for any future oil development through effective and independent oversight bodies, and providing information on health and environmental risks to communities likely to be affected by potentially harmful operations.243
Id. ¶ 69.
A. Friends of Lake Turkana Trust v. Honorable Attorney General of Kenya (sued on behalf of the Government of the Republic of Kenya) and Kenya Power & Lighting Company Ltd.244244Friends of Lake Turkana Trust v. The Honorable Attorney General and The Kenya Power & Lighting Company Ltd., ELC Suit No. 825 of 2012, Environment and Land Court at Nairobi (May 19, 2014) [hereinafter Friends of Lake Turkana Trust v. Kenya].
TOPFriends of Lake Turkana Trust v. The Honorable Attorney General and The Kenya Power & Lighting Company Ltd., ELC Suit No. 825 of 2012, Environment and Land Court at Nairobi (May 19, 2014) [hereinafter Friends of Lake Turkana Trust v. Kenya].
This case was brought by the Friends of Lake Turkana Trust, a registered trust that works to protect and conserve the waters of Lake Turkana in the very dry and arid northern part of Kenya.245
Id. at 1; see also Our Work, Friends of Lake Turkana, http://www.friendsoflaketurkana.org/our-work/projects.
Friends of Lake Turkana Trust v. Kenya, supra note 245, at 1–2.
Id.
Id.
Id. at 3.
Id. at 2.
Id. at 3.
The plaintiff sought an order of mandamus that would compel both the Kenyan government and the Kenya Power and Lighting Company Limited to make “full and complete disclosures of each and every agreement or arrangement entered into or made” with the Ethiopian government relating to the proposed purchase of 500 megawatts from the Gibe III dam.252
Id. at 2.
Id.
In reply the government of Kenya, Kenya Power and Lighting Company and the interested party argued the proposed project was part of the National Transmission Grid, which aligns with Kenya’s Vision 2030’s National Electricity Supply Master Plan.254
Id. at 5.
Id.
Id.
Id.
Id. at 4.
Id.
Id.
In its judgment, the court found it had jurisdiction over the claim and the parties involved in the lawsuit and that there was not a more appropriate legal forum or instrument for hearing the alleged claim.261
Id. at 7–8.
Id. at 7.
Id. at 8.
The court then looked to whether the fundamental rights of the plaintiff had actually been violated and whether the respondents had obligations with regard to remedying these violations. The plaintiff first alleged that there was a violation of the right to life and dignity, as enumerated in Articles 26 and 28 of the Kenyan Constitution, because the purchase of electricity from Ethiopia would allegedly deprive the affected communities of their livelihood, lifestyle, and cultural heritage.264
Id.
Id. at 11.
Id. at 11–12.
Id. at 11.
Id.
Id.
Id.
Id. at 12.
Id.
Id.
Id. at 13.
The plaintiff next made the allegation that its right to information, pursuant to Articles 10, 35, and 69 of the Kenyan Constitution, had been violated as the Kenyan government had refused to disclose the nature and details of the alleged agreement between the Ethiopian and Kenyan governments.275
Id.
Constitution of Kenya art. 10 (2010).
Id. at art. 35.
Friends of Lake Turkana Trust v. Kenya, supra note 245, at 14.
Id. at 15.
The court held that even if power purchase agreements might not have yet been entered into, and there was no concrete evidence of harm already suffered, the respondents and interested party had a duty to establish that no environmental harm would arise from the said agreements and projects.280
Id. at 16.
Id. at 17.
Id. at 19.
Id.
Id. at 20.
This case deals more directly with the hypothetical nature of claims when litigants seek judicial orders to prevent projects that are yet to be undertaken. Yet at the same time, the court, unlike in the Serengeti case, did not argue that the lack of absolute certainty about the nature of these potential harms did not prevent the court from using the lens of the precautionary principle in international environmental law under which it was foreseeable that petitioners reasonably believed that the project would adversely impact thousands of people in the vicinity of Lake Turkana in northern Kenya to make a livelihood, and would undermine their cultural heritage and attachment to Lake Turkana.285
Id. at 16.
Id. at 15.
The case also demonstrates how judicial environmentalism is seeping into national judiciaries. It shows how mega-development projects that have an international dimension can be amenable to jurisdiction in a domestic court. Finally it indicates the authority a domestic court can wield to order a government and state owned corporations to make a full and complete disclosure to the potential victims regarding any arrangement that might adversely affect their rights, including the right to a clean and healthy environment.
B. Appellants v. Zambian Government and Mwembeshi Resources Ltd., High Court of Lusaka, Zambia287287Discussed in Zambezi Resources Limited, June 2015 Quarterly Operations Report, (July 3, 2015), www.zambeziresources.com/_content/documents/1120.pdf [hereinafter Zambezi Resources].
TOPDiscussed in Zambezi Resources Limited, June 2015 Quarterly Operations Report, (July 3, 2015), www.zambeziresources.com/_content/documents/1120.pdf [hereinafter Zambezi Resources].
Another decision demonstrating how judicial environmentalism is seeping into national judicial systems comes from Southern Africa. The High Court of Zambia sitting in Lusaka heard an appeal made by an aggregate of Zambian conservation groups against a decision of the Zambian Minister of Lands, Natural Resources and Environmental Protection in January of 2014 to allow the Zambian corporation, Mwembeshi Resources Ltd., to continue its plans to develop its Kangaluwi Copper Project, which lies within the Lower Zambezi National Park in Zambia.288
Id. at 1.
Id.
Id. at 2.
In February of 2014, one month after the appeal was heard, the Lusaka High Court issued a stay of execution on the Project’s development that has since then stalled the Kangaluwi Project.291
Id.
Id. at 1.
Id. at 1–2.
The proposed Kangaluwi Copper Project covers the copper deposits of Kangaluwi, Chisawa, and Kalulu, and it is located 180 kilometers east of Lusaka, Zambia. The entire Project area lies within the Lower Zambezi National Park.294
Id. at 1.
Id.
Paul Steyn, Lower Zambezi National Park Mining Project is ‘Fatally Flawed,’ says Report, National Geographic, Nov. 14, 2014, http://voices.nationalgeographic.com/2014/11/14/lower-zambezi-national-park-mining-project-is-fatally-flawed-says-report/.
Zambezi Resources, supra note 289, at 2.
Steyn, supra note 298.
Id.
Dr. Kellie Leigh, Evaluation Report: Kangaluwi Open-pit Copper Mine in the Lower Zambezi National Park, prepared for Lower Zambezi Tourism Association (Nov. 2014).
Id. at 2.
Id. at 2–3.
Some potential negative impacts considered by this report include long-term harm to the health of the Zambian people, wildlife, environment, and tourism industry, and it also questions the Kangaluwi Copper Project’s ability to undertake responsible mining practices in a protected area that is vital to Zambia’s sustainable tourism industry.303
Id. at 3–4.
Id. at 4.
Id.
Id. at 40.
Id.
Id. at 42.
Id. at 45.
Id.
Thus in many respects, this case, like the Serengeti case in the EACJ and the Gibe III Dam case in the Land and Environment Court in Kenya, is premised on potential environmental harms. In all these cases a fragile ecosystem was argued to be under threat arising from a mega-development project. Thousands of residents who live in the vicinity of these development programs advance claims that their livelihood, food, shelter, and a clean and safe environment would be adversely affected. The suit was filed against the Zambian government and a wholly-owned local subsidiary of a multinational corporation in a national court where there was no jurisdictional contest. Unlike in the Gibe III case from the Land and Environment Court in Kenya, there were no claims of constitutional violations relating to the right to information—possibly because the Constitution of Zambia, unlike the 2010 Constitution of Kenya, does not guarantee such a right.311
See Constitution of Kenya, supra note 278, at art. 42 (2010) (providing that “Everyone has a right to a healthy and clean environment.”).
Unlike the Serengeti decision, or the decision of the ECOWAS Court of Justice and the African Commission on Human and Peoples Rights with regard to the Niger Delta, these national court decisions did not directly raise questions of violations of sub-regional, regional, or international law. Thus a major advantage of international courts is their ability to test the legality of mega-development projects against rules of international law generally and international environmental law in particular. Finally, it is also quite clear that the two national court decisions from Kenya and Zambia discussed above were, like the Serengeti case, predicated on potential environmental harm. Plaintiffs, as we have seen, have a harder time prevailing in such cases. By contrast, the cases arising from the Niger Delta where environmental harm is very evident and occurred in the past or is continuing, the African Commission on Human and Peoples Rights as well as the ECOWAS Court of Justice had no hesitation issuing decisions against the government of Nigeria. A major hurdle that litigants who bring these suits face in international courts is their inability to entertain suits against corporate actors. However, national courts much more easily fill this gap as we have seen in both the Gibe III case from Kenya and the Zambian mining case as well.
I want to end this section by noting that the South African judiciary has also made significant steps in protecting the environment. Thus a former Chief Justice of South Africa’s Constitutional Court noted from the bench that “courts have a crucial role to play in the protection of the environment.”312
Fuel Retailers Ass’n of South Africa v. Director Gen, Envt’l Mgmt. of Agric., Conserv. & Mgmt., Mpumalanga Province & Others, 2007 (6) SA 4(CC) paras. 39G–40F. For an international survey of the role of national judiciaries, see Louis J. Kotze & Alexander R. Paterson, (eds) The Role of the Judiciary in Environmental Governance: Comparative Perspectives, (2009) (Book also discusses the Johannesburg Principles on the Role of Law and Sustainable Development, adopted by the Global Judges Symposium, 2002).
What are the features of judicial environmentalism arising from our examination of the foregoing cases? A major feature of judicial environmentalism is the manner in which Africa’s international courts have embraced the principle of systemic integration, which is promoting coherence within a fragmented system of international law rules. Thus, although these international courts are established within sub-regional trade integration schemes, they interpret and apply norms of international human rights and environmental law both under Africa’s regional human rights system and under multilateral environmental treaties. In effect these courts apply and interpret rules of international law outside their immediate sub-regional treaty system. Take the example of the East Africa Court of Justice’s First Instance Division Serengeti decision on the merits, which stopped the government of Tanzania from building a road through a UNESCO world heritage site.313
ANAW v. Tanzania, supra note 1.
Id. at ¶ 48.
Id.
SADC Tribunal Protocol, 2000, available at http://www.sadc.int/documents-publications/
show/Protocol_on_the_Tribunal_and_Rules_thereof2000.pdf.
Joel Trachtman, Conflict of Norms in Public International Law: How WTO Law Relates to Other Rules of International Law, 98 Am. J. Int’l L. 859 (2004) (book review) (arguing that “even if other international law were to modify WTO law under international law generally, these modifications would not be applicable in WTO dispute settlement”).
The resort to international judicial environmental decision-making indicates a new redeployment of an African international courts, and demonstrates that the evolution of African international courts is unlikely to replicate the European model on which they are based. Second, this turn demonstrates that proposals to establish international environmental courts underestimate the capability of newer courts to be redeployed from their original mandates to new aims. African international courts have indeed been evolving incrementally as a result of new rules in second generation regional trade agreements that include goals such as human rights and environmental protection. New players, like NGOs, have a vested interest in mobilizing these rules and evolving contexts in which regional cooperation has slowly but surely come to be accepted by States as putting constraints on their sovereignty.318
For a similar analysis in the context of the ECOWAS Court of Justice, See Alter et al., supra note 11.
This is because it has long been assumed that there needs to be a more structured, organized, and coordinated model of claiming environmental violations, particularly through international courts.319
Hari M. Osofsky, Learning from Environmental Justice, 24 Stan. Envtl. L. J. 71 (2005).
Alfred Rest, Need for an International Court for the Environment? Underdeveloped Legal Protection for the Individual in Transnational Litigation, 24 ENVTL. L. & POL'Y 173 (1994). For a review of the 1992 effort of the International Court of the Environment Foundation, see Ole W. Pedersen, An International Environmental Court and International Legalism, 24 J. Envtl L, 547 (2012)
Osofsky, supra note 321.
African international courts have evolved differently from the consensus in the literature described above. Although African international courts were established as trade courts to decide cases on regional trade integration, they have been redeployed first to protect human rights and now to protect the environment. The courts have turned to treaty language that protects the environment in standalone provisions, rather than invoking human rights provisions to find violations of environmental protections.322
Id.
The EACJ has become a convenient forum to break down the strong prevalence of positivism—the idea that courts construed rules so strictly that they ignored their underlying policy rationales as expressed in their object and purpose. The EACJ’s case law solidly rejects such an approach to judicial decision-making.323
Gathii, Mission Creep, supra note 10.
Africa’s international courts are recent creations. Although they imitate older courts and in particular the European Court of Justice in form, their human rights case law indicates that they embrace institutional flexibility in their decision-making more than the WTO’s Dispute Settlement Body would embrace. By defying the distinct compartmentalization of trade and human rights courts, African International Trade Courts have broken the post-second world war distinction of separate realms for economic and human rights judicial institutions. Now they have further expanded their jurisdiction over environmental cases. In so doing this they have, on occasion issued bold orders such as the one stopping the construction of the Serengeti highway. Clearly, there are limits to the amount of institutional flexibility that can be achieved. Resources for significantly expanding the role of these courts are limited.
Yet, I think it important to note that the willingness of these courts to embrace environmental cases—a willingness that is instructive for multilateral tribunals such as the WTO’s dispute settlement body. In other words, there is no reason why the WTO’s dispute settlement body could not borrow more from the preambular aspirations of the Treaty Establishing the WTO, as well as GATT 1994, which both refer to goals like the creation of full employment and sustainable development.324
See Second Preambular Paragraph of GATT 1947 as amended in 1994, GATT 1994: General Agreement on Tariffs and Trade 1994, Apr. 15, 1994, Marrakesh Agreement Establishing the World Trade Organization, Annex 1A, THE LEGAL TEXTS: THE RESULTS OF THE URUGUAY ROUND OF MULTILATERAL TRADE NEGOTIATIONS 17 (1999), 1867 U.N.T.S. 187, 33 I.L.M. 1153 (1994) providing in part “Recognizing that their relations in the field of trade and economic endeavor should be conducted with a view to raising standards of living, ensuring full employment and a large and steadily growing volume of real income and effective demand…”; and the Marrakesh Agreement Establishing the World Trade Organization, Apr. 15, 1994, THE LEGAL TEXTS: THE RESULTS OF THE URUGUAY ROUND OF MULTILATERAL TRADE NEGOTIATIONS 4 (1999), 1867 U.N.T.S. 154, 33 I.L.M. 1144 (1994) providing in the first preambular paragraph that the Parties to this agreement rec WTO Agreement: recognize “their relations in the field of trade and economic endeavor should be conducted with a view to raising standards of living, ensuring full employment and a large and steadily growing volume of real income and effective demand expanding the production of and trade in goods and services, while allowing the optimal use of the world’s resources in accordance with the objective of sustainable development, seeking both to protect and preserve the environment and to enhance the means of doing so in a manner consistent with their respective needs and concerns at different levels of development,” id.
Article 9 Agreement on Trade-Related Aspects of Intellectual Property Rights, Apr. 15, 1994; Marrakesh Agreement Establishing the World Trade Organization, Annex 1C; THE LEGAL TEXTS: THE RESULTS OF THE URUGUAY ROUND OF MULTILATERAL TRADE NEGOTIATIONS 320 (1999), 1869 U.N.T.S. 299, 33 I.L.M. 1197 (1994) [hereinafter TRIPS Agreement].
TRIPS Agreement, supra note 327, at art. 8.1.
In fact, newer generational regional trade agreements between the E.U. and African, Caribbean, and Pacific countries contain references to goals such as human rights, the rule of law and democracy, and the protection of the environment.327
For a view that such ‘soft’ commitments to human rights are included in trade treaties in the context of West, East and Southern Africa, see Alter et al., Backlash Against International Courts in West, East and Southern Africa, supra note 181.
For example, in the WTO, preambular provisions have been held by the Appellate Body as only capable of adding color and texture (rather than a different interpretation than that found in the substantive provisions), see US — Shrimp, para. 153 (WT/DS58/AB/R) where the Appellate Body held that the language of the Preamble of the WTO Agreement “demonstrates a recognition by WTO negotiators that optimal use of the world’s resources should be made in accordance with the objective of sustainable development. As this preambular language reflects the intentions of negotiators of the WTO Agreement, we believe it must add colour, texture and shading to our interpretation of the agreements annexed to the WTO Agreement, in this case, the GATT 1994,” id. For more, see James Gathii, The Legal Status of the Doha Declaration on TRIPS and Public Health Under the Vienna Convention of the Law of Treaties,” 15 Harv. J. Law & Tech 291 (2002).
They decided not to behave like the WTO’s Dispute Settlement Body which continues to narrowly confine its mandates to decide only cases that raise trade issues exclusively under WTO rules. That Africa’s international courts have not decided to confine their role to merely trade issues also shows that African regional trade agreements are not merely confined to achieving market liberalization. After all, these agreements have commitments in a broad variety of areas.329
James Gathii, African Regional Trade Agreements as Legal Regimes (2011).
Ultimately, this Article has demonstrated the expanding role of Africa’s international and domestic courts in implementing, applying and enforcing environmental laws and policies. Together, national and international courts have therefore played an important role in giving content to environmental rights; facilitating administrative justice in environmental law; promoting judicial access to enforcing environmental obligations; examining the validity of governmental conduct in the area of the environment; and making links between rights of indigenous peoples to environmental rights. These new roles assumed by African international courts are a far cry from the excessive reliance on common law concepts such as nuisance and negligence that existed prior to the enactment of modern environmental statues at the national, regional and sub-regional levels in the last two decades. It is this expanded landscape of environmental law along with broadened standing and active involvement of civil society groups that has resulted in Africa’s new judicial environmentalism.
Corporate actors, particularly foreign investors in developing countries, operate in the not so clear zone between international law and domestic law.330
Penelope Simons, International Law’s Invisible Hand and the Future of Corporate Accountability for Violations of Human Rights, 3 J. Env’t. & Hum. Rts. 5, 33 (2012).
For more on this, see Don Deya, Worth the Wait: Pushing for the African Court to Exercise Jurisdiction for International Crimes, Open Society Initiative for Southern Africa, (Mar. 6, 2012), http://www.osisa.org/sites/default/files/is_the_african_court_worth_the_wait_-don_deya.pdf.
This Article has demonstrated how African international courts are mobilizing international environmental law in unprecedented ways. As the African Commission on Human and Peoples Rights noted in 2001, environmental rights “are essential elements of human rights in Africa.”332
SERAC v. Nigeria, supra note 4, ¶ 68.
For an excellent analysis, see Carmen Gonzalez, Environmental Justice, Human Rights and the Global South, 13 Santa Clara J. Int’l L. 162‑63 (2015), and Karin Mickelson, Leading Towards a Level Playing Field, Repaying Ecological Debt, or Making Environmental Space: Three Stories About International Environmental Cooperation, 43 Osgoode Hall L. J. 250‑54 (2005).
For caution in thinking about judicial interventions in favor of environmental protection in another context, see Balakrishnan Rajagopal, Limits of Law in Counter-Hegemonic Globalization: The Indian Supreme Court and the Narmada Valley Struggle, Center for the Study of Law and Governance (Jawajarlal Nehru University, Working Paper, CASLG/WP/04, 2004) available at http://www.jnu.ac.in
cslg/workingPaper/04-Limits%20Law(Rajagopal).pdf.
- 1African Network for Animal Welfare (ANAW) v. The Attorney General of the United Republic of Tanzania, Ref. No. 9 of 2010, Judgment, East African Court of Justice at Arusha First Instance Div. ¶ 64 (June 20, 2014), http://eacj.org/wp-content/uploads/2014/06/Judgement-Ref.-No.9-of-2010-Final.pdf[hereinafter ANAW v. Tanzania].
- 2Attorney General of the United Republic of Tanzania v. African Network for Animal Welfare (ANAW), Appeal No. 3 of 2014, Judgment, East African Court of Justice at Arusha Appellate Division (July 29, 2015), http://eacj.org/?cases=the-attorney-general-of-the-united-republic-of-tanzania-vs-african-network-for-animal-welfare[hereinafter Tanzania v. ANAW II].
- 3Socio-economic Rights and Accountability Project (SERAP) v. Federal Republic of Nigeria, Court of Justice of the Economic Community of West African States (Dec. 14, 2012) [hereinafter SERAP v. Nigeria].
- 4Social and Economic Rights Action Center (SERAC) and Center for Economic and Social Rights (CESR) v. Nigeria, 155/96, African Commission on Human and People’s Rights [Afr. Comm’n H.P.R.], (Oct. 27, 2001) [hereinafter SERAC v. Nigeria].
- 5These are: the African Court of Human and Peoples Rights, see Organization of African Unity (OAU), see Protocol to the African Charter on Human and People's Rights on the Establishment of an African Court on Human and People's Rights, 10 June 1998; the East African Court of Justice (EACJ, see Treaty for the Establishment of the East African Community, art. 24, Nov. 30, 1999, 2144 U.N.T.S. 255 (providing at Article 9(1)(e) for the establishment of the EACJ); the Southern Africa Development Community Tribunal (“SADC Tribunal”), which is currently suspended but in the process of reconstitution, see Protocol on the Tribunal and Rules thereof (2000), arts. 15 & 16 (2000 Protocol), available at http://www.sadc.int/files/1413/5292/8369/Protocol_on_the_Tribunal_and_Rules_thereof2000.pdf;the Economic Community of West Africa Court of Justice (ECCJ),see Supplementary Protocol A/SP1/01/05 Amending the Preamble and Articles 1,2,9 and 30 of Protocol (A/P.1/7/91) Relating to the Community Court of Justice and Article 4 Paragraph 1 of the English Version of the English Version of the Said Article, January 19, 2005 available at http://www.courtecowas.org/site2012/index.php?option=com_content&view=article&id=53&Itemid=9;the Common Market for Eastern and Southern Africa Court of Justice (“COMESA Court of Justice”) see Treaty Establishing the Common Market of Eastern and Southern Africa art. 7, Dec. 8, 1993, 2314 U.N.T.S. 265; the OHADA Common Court of Justice and Arbitration, see Traité portant révision du Traité relatif à l'Harmonisation du Droit des Affaires en Afrique, adopté le 17/10/2008 à Québec (Canada) available at http://www.ohada.com/traite/10/traite-relatif-a-l-harmonisation-en-afrique-du-droit-des-affaires.html;the Common Market for Central Africa Court of Justice (“CEMAC Court of Justice”), see Traité constitutif CEMAC, Article 2, www.Droit-Afrique.com;and the Court of Justice of the West African Economic and Monetary Union (WAEMU), see Traité de l'Union Economique et Monétaire Ouest-Africaine available at http://www.worldtradelaw.net/document.php?id=fta/agreements/waemufta.pdf.The Arab Maghreb Union does not have a functional court yet. See Karen J. Alter, The New Terrain of International Law: Courts, Politics, Rights 99 (2014). This proposal also includes the African Commission on Human and Peoples Rights, which, though not formally a court, exercises quasi-judicial functions, and its decisions have been heavily relied upon by African sub-regional courts. This count also excludes the International Criminal Tribunal for Rwanda which is now undergoing dissolution and was established under United Nations Security mandate and the Special Court for Sierra Leone that has received considerable scholarly attention including book-length treatments.
- 6Alter, supra note 5, at 99.
- 7Id. at 98 (noting that these courts are “fairly new”).
- 8For an extensive analysis, see James Gathii, African Regional Trade Agreements as Legal Regimes 264–97 (2011).
- 9Alter, supra note 5, at 151 (noting that most African courts emulate the European Court of Justice).
- 10For the East African Court of Justice, see James Gathii, Mission Creep or a Search for Relevance: The East African Court of Justice's Human Rights Strategy, 24 Duke J. Comp. & Int’l L. 249 (2013).
- 11Karen J. Alter et al., A New International Human Rights Court for West Africa: The ECOWAS Community Court of Justice, 107 Am. J. Int’l L. 737, 776–77 (2013); see also Solomon Eboborah, The Role of the ECOWAS Community Court of Justice in the Integration of West Africa: Small Strides in the Wrong Direction? (iCourts, Working Paper, No. 27 (June 2015)), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2621453.
- 12James Gathii, Sub-Regional Court or Employment Tribunal? The Legacy and Legitimacy of the Case-Law of the COMESA Court of Justice 2001-2015, forthcoming in Helene Ruiz Fabri et al., The Legitimacy of International Trade Tribunals (2015).
- 13Gathii, Mission Creep, supra note 10, at 295–96.
- 14Paul Brietzke, Private Law in Ethiopia, 18 J. Afr. L. 158 (1974).
- 15Kwesi Prempeh, A New Jurisprudence for Africa, 10 J. Democracy 135 (1999).
- 16Gathii, Sub-Regional Court or Employment Tribunal?, supra note 12.
- 17Alter et al., supra note 11, at 778 (arguing that litigation in sub-regional courts “provides a corrective to the limited avenues of legal recourse available to victims of human rights abuses in Africa”).
- 18Alter, supra note 5, at 5.
- 19For example, in the ECOWAS Court of Justice, since 2005, individuals have been able to bring cases challenging human rights violations under the African Charter on Human and Peoples’ Rights. However, individuals do not have a direct right of access to the court to file cases of violation of ECOWAS trade rules. Only a preliminary reference by a national court or by the ECOWAS Commission or a Member State can initiate such a case. See Alter et al., supra note 11, at 753–758.
- 20One of the most successful of these courts is the European Court of Justice, which in 2014 received 56,300 cases and 65,800 cases in 2013. European Court of Human Rights, Annual Report of the European Court of Human Rights 170 (March 2015), http://echr.coe.int/Documents/Report_2014_ENG.pdf.
- 21Gathii, supra note 8, at 279.
- 22See Treaty for the Establishment of the East African Community, art. 27(2), Nov. 30, 1999, providing that at a future date, the Council of Ministers may extend the jurisdiction of the Court to include human rights. To date no such extension has been granted.
- 23Gathii, supra note 8, at 288–90.
- 24See Article 1 of the Understanding on Rules and Procedures Governing the Settlement of Disputes (The DSU or Annex 2, Agreement Establishing the World Trade Organization), DSU, Dispute Settlement Rules: Understanding on Rules and Procedures Governing the Settlement of Disputes, Marrakesh Agreement Establishing the World Trade Organization, Annex 2, THE LEGAL TEXTS: THE RESULTS OF THE URUGUAY ROUND OF MULTILATERAL TRADE NEGOTIATIONS 354 (1999), 1869 U.N.T.S. 401, 33 I.L.M. 1226 (1994) (providing that “[t]he rules and procedures of this Understanding shall apply to disputes brought to the consultation and dispute settlement provisions of agreements listed in Appendix 1 to this Understanding”). Appendix 2 includes only Agreements negotiated by WTO Members and does not include non-WTO treaties such as those relating to international human rights. Further, Article 3.2 of the DSU provides that the WTO’s dispute settlement system is intended to preserve the rights and obligations of members under the covered agreements.
- 25ETS 5; 213 UNTS 221
- 26Joel Trachtman, The Jurisdiction of the World Trade Organization, 98 Am. Soc'y Int'l L. Proc. 141 (arguing that it “only WTO law, not general international law, constitutes substantive law capable of application in WTO dispute settlement.”).
- 27Aljandro Saiz Arnaiz & Dra. Aida Torres Perez, “Main Trends in the Recent Case Law of the European Court of Justice and the European Court of Human Rights in the Field of Fundamental Rights,” European Parliament (2012) (finding 57 cross references in the human rights case law of the two courts between 2010 and 2011).
- 28For more on the relationship between the European Court of Justice and the European Court of Human Rights, see Anthony Arnull, The European Union and Its Court of Justice 367 (2006) (noting in part that since the European Union is not itself a party to the Council of Europe, it is not bound by the European Convention on Human Rights).
- 29For more, see James Gathii, The Variation in the Use of Sub-Regional Integration Courts between Business and Human Rights Actors: The Case of the East African Court of Justice, 79 L. & Contemp. Probs. (forthcoming 2016).
- 30Laurence R. Helfer, Sub-Regional Courts in Africa: Litigating the Hybrid Right to Freedom of Movement, (iCourts Working Paper, No. 32, 1‑25 (2015)), http://ssrn.com/abstract=2653124.
- 31See James Gathii, Good Governance as a Counter Insurgency Agenda to Oppositional and Transformative Social Projects in International Law, 5 Buff. Hum. Rts. L. Rev. 107, 159 n.104 (1999).
- 32Id. at 159.
- 33Id. at 154.
- 34Id.
- 35In Europe, the European Court of Justice primarily entertains cases arising under European Union law, whereas the European Court of Human Rights entertains cases asrising from the European Convention on Human Rights. In the Americas, the Inter-American Court of Human Rights entertains cases under the American Convention on Human Rights, whereas trade disputes are the purview of the various regional dispute settlement mechanisms set up under regional trade agreements such as the North American Free Trade Agreement (NAFTA). In Africa, the African Court of Human and Peoples’ Rights has jurisdiction over cases arising from the African Charter on Human and Peoples’ Rights but no jurisdiction over any trade disputes. Trade disputes are the purview of the respective sub-regional trade courts which are the subject of this paper.
- 36Rachel Ellet, Emerging Judicial Power in Transitional Democracies: Malawi, Tanzania and Uganda 347‑48 (1998) (Ph.D. dissertation, Northeastern University) (discussing the timidity of the Tanzanian judiciary).
- 37Teitel further argues quite persuasively that:
[i]n a world that is interdependent but not integrated there quite simply may be a need for a potentially universalizable discourse that can still function in a context of difference between persons and peoples, one that comprehends wrongdoing and atrocities, and can be diffused through multiple institutions that would otherwise be isolated or fragmented – a discourse that allows recognition of individual rights and attribution of individual responsibility and accountability with or without the state, hence arguably allowing for some change. International adjudicators are better situated that many other international institutions to supply this discourse and the discourse is arguably a source of self-legitimization for international courts and tribunals.
Ruti Teitel, LJIL Symposium: A Consideration of “On the Functions of International Courts: an Appraisal in Light of Their Burgeoning Public Authority," Opinio Juris, (Apr. 9, 2013), http://opiniojuris.org/2013/04/09/ljil-symposium-a-consideration-of-on-the-functions-of-international-courts-an-appraisal-in-light-of-their-burgeoning-public-authority/.
- 38For example, in West Africa, cases alleging a violation of ECOWAS trade rules must be referred to the ECCJ by national courts. So far, no such cases have been referred to the ECCJ. See Alter et al., supra note 11 at 774–75 (discussing the choice in giving human rights cases direct access to the ECCJ and only indirect access for economic cases because of the requirement of a national reference is a political choice member states made in ECOWAS that has resulted in fewer cases to the Court). In East Africa, there is only one instance of a referral of cases from national courts to the EACJ. Samuel Mukira Muhochi v. The Attorney General of the Republic of Uganda, Ref. No. 5 of 2011, East African Court of Justice at Arusha (May 17, 2013) (seeking a preliminary ruling on the interpretation and application of Articles 6(d), 7(2) and 124 of the EAC Treaty, which were at issue in the High Court of Kenya).
- 39Gathii, Sub-Regional Court or Employment Tribunal?, supra note 12.
- 40Id.
- 41Id.
- 42Id.
- 43Id.
- 44UNESCO designates a place a world heritage site because of its cultural or natural significance as defined under the 1972 Convention Concerning the Protection of World Cultural and Natural Heritage. UNESCO, Serengeti National Park, UNESCO World Heritage Ctr., http://whc.unesco.org/en/list/156.
- 45Michael Chege, Swapping Development Strategies: Kenya and Tanzania After Their Founding Presidents, Political Development and the New Realism in Sub-Saharan Africa 247, 250 (David E. Apter & Carl G. Rosberg eds., 1994).
- 46UNESCO, supra note 45.
- 47Jeffrey Gettlemen, Serengeti Road Plan Offers Prospects and Fears, N.Y. Times (Oct. 31, 2010), http://www.nytimes.com/2010/10/31/world/africa/31serengeti.html.
- 48ANAW v. Tanzania, supra note 1, at ¶ 22. Among the ideas the government invoked in building the road was the argument that it would lower transportation costs between Mugumu and Loniondo Centers. Id.
- 49On Tanzania’s opposition, see generally Barak Hoffman & Lindsay Robinson, Tanzania’s Missing Opposition, 20 J. of Democracy 123 (2009) (discussing how CCM suppresses any opposition to its near-monopoly of power).
- 50Tanzania: Kikwete Support Will Spur Serengeti Road, Oxford Analytica Daily Brief (Oct. 1, 2010).
- 51For an account of President Kikwete’s development plans, see The United Republic of Tanzania President’s Office, Planning Commission, The Tanzania Five Year Development Plan 2011/2012-2015/2016: Unleashing Tanzania’s Growth Potentials (June 2011), http://www.tzdpg.or.tz/fileadmin/_migrated/content_uploads/FYDP-2012-02-02.pdf.
- 52Julius K. Nyerere, The Arusha Declaration, in Ujamaa – Essays on Socialism 13, 15 (1968).
- 53Id. at 29.
- 54Julius K. Nyerere, The Purpose is Man, in Ujamaa – Essays on Socialism 91, 96 (1968).
- 55Nyerere, The Arusha Declaration, supra note 52, at 25–26.
- 56Mellowswan Foundation Africa-Tanzania, Conservation Critical to Tanzania’s Future (Aug. 17, 2010), http://mellowswanafrica.org/arusha-manifesto/.
- 57Id.
- 58Id.
- 59Chege, supra note 45, at 247, 250.
- 60Id. at 268‑89, 272‑73.
- 61Id. at 273.
- 62Id.
- 63Gov’t Now Views Private Sector as Engine for Growth, AllAfrica.com (Aug. 7, 2014), ProQuest, Doc. Id. 1551757694.
- 64Reflecting on Kikwete’s Five Year Development Plan, AllAfrica.com (Dec. 22, 2011), ProQuest, Doc. Id. 912475367.
- 65Kikwete Talks Tough on Roadblocks, AllAfrica.com (Mar. 22, 2015), ProQuest, Doc. Id. 1665313752.
- 66George Omondi, Kenya, Tanzania Experts Differ on Serengeti Road Plan, Business Daily (Aug. 21, 2013), http://www.businessdailyafrica.com/Kenya-and-Tanzania-experts-differ-on-Serengeti-road-plan/-/539546/1962852/-/11njmi3z/-/index.html.
- 67NGOs Attack Kenya Over Serengeti Highway, AllAfrica.com (Apr. 30, 2012), ProQuest. Doc. Id. 1010288354.
- 68Edmund Blair & Fumbuka Ng’Wanakilala, Tanzania President Maps Out Plans for Transport Hub, Reuters Summit (Apr. 11, 2014, 2:18 PM), http://www.reuters.com/article/2014/04/11/africa-summit-tanzania-transportation-re-idUSL6N0N346U20140411.
- 69Id.
- 70Alex Ngarambe, Less Delays at Port of Dar as Services are Privatized, Rwanda Today, July 12, 2013, http://www.theeastafrican.co.ke/Rwanda/Business/Less-delays-at-port-of-Dar-as-services-are-privatised-/-/1433224/1912856/-/jfdaoyz/-/index.html.
- 71Id.
- 72Id.
- 73Id.
- 74Maasai Association, The Maasai People, http://www.maasai-association.org/maasai.html.
- 75Jason Patinkin, Maasai Fury as Plan to Lure Arabian Gulf Tourists Threatens Their Ancestral Land, The Guardian, Mar. 30, 2013, http://www.theguardian.com/world/2013/mar/30/maasai-game-hunting-tanzania.
- 76Id.
- 77Blair & Ng'Wanakilala, supra note 68.
- 78Id.
- 79Tanzania, Burundi to Join “Coalition of the Willing,” Daily Nation, Feb. 25, 2014, ProQuest, Doc. Id. 1501471530.
- 80Id.
- 81African Network for Animal Welfare, Page Info, Facebook, https://www.facebook.com/pages/Africa-Network-for-Animal-Welfare-ANAW/104162487424?sk=info&tab=page_info,last visited Nov, 11, 2015.
- 82African Network for Animal Welfare, Who We Are, ANAW Homepage, http://www.anaw.org/
index.php/about-us/who-we-are. - 83Id.
- 84Id.
- 85Id.
- 86African Network for Animal Welfare, Our Work: Policies and Legislation, http://www.anaw.org/index.php/programs/policy-legislation;Rachel Cernansky, Turning African Wildlife into Moneymakers Rather Than Dinner, Takepart (Apr. 13, 2015), http://www.takepart.com/article/2015/04/13/freeing-snared-wildlife-kenya-poachers-snares;Bobbie Hasselbring, Hunted To Extinction, The Chronical Magazine (Sept. 29, 2014), http://www.lclark.edu/live/news/28022;ANAW, First FAO Global Multi-Stakeholder Forum on Animal Welfare, http://www.fao.org/fileadmin/user_upload/animalwelfare/ANAW.pdf.
- 87See https://africanetworkforanimalwelfare.wordpress.com/(noting that the case is important).
- 88Interview with Saitabao Ole Kanchory, attorney for ANAW, Nairobi, Kenya (Sept. 27, 2015).
- 89Id.
- 90Id.
- 91See John Mbaria, “Win for Conservationists as East African Court Stops Serengeti Road,” The East African, June 21, 2014 available at http://mobile.theeastafrican.co.ke/News/Wildlife-conservation-East-African-Court-stops-Serengeti-road/-/433842/2357172/-/format/xhtml/item/1/-/9tywjq/-/index.html.
- 92ANAW, supra note 88; see also Save the Serengeti—by Africa Network for Animal Welfare—USA, Loveanimals.org, http://www.loveanimals.org/anaw-save-the-serengeti.html.
- 93Friends of the Serengeti, The Serengeti Highway Battle Won, the War with the Courts Continues, Africa Geographic (July 30, 2014), http://africageographic.com/blog/the-serengeti-highway-battle-won-the-war-with-the-courts-continue/.
- 94Wouter Vergeer, Travel Association Seek to Save the Serengeti, Safari Bookings Blog (June 27, 2014), https://www.safaribookings.com/blog/158.
- 95Save the Serengeti, supra note 93.
- 96Id.
- 97See Ben Ole Koissaba, Elusive Justice: The Maasai Contestation of Land Appropriation in Kenya; A Historical and Contemporary Perspective, Intercontinental Magazine (Jan. 28, 2015), https://intercontinentalcry.org/elusive-justice-maasai-contestestation-land-kenya/(citing S.O. Kanchory, The Proposed Maasai Land Case Brief: Report Prepared with the Authority upon Commissioning by Maa Civil Society Forum (2006)).
- 98Dr. Kimpei Munei & 59 Others v. the National Land Commission Selection Panel and the Attorney General, Petition 266 of 2012, The High Court of Kenya at Nairobi, Milimani Law Courts (2012).
- 99Omondi, supra note 66.
- 100Id.
- 101Gettlemen, supra note 47; Mark Seal, The Fight Over the Serengeti Highway, Departures (Sept. 19, 2013), http://www.departures.com/travel/travel/fight-over-serengeti-highway.
- 102Seal, supra note 102.
- 103Id.
- 104Id.
- 105Id.
- 106Olivia Judson, Road Kill in the Serengeti?, NY Iimes Opinionator Blog, June 15, 2010, http://opinionator.blogs.nytimes.com/2010/06/15/road-kill-in-the-serengeti/?_r=0.
- 107Id.
- 108Andrew P. Dobson, et al., Road Will Ruin Serengeti, 467 Nature 272, 272 (2010).
- 109Id.
- 110Id.
- 111Boyd Norton, Protecting One of the Great Wildlife Reserves on Earth, 30 Earth Island J. 15, 15 (Summer 2015).
- 112Id.
- 113Earth Island Inst., About Us, http://www.earthisland.org/index.php/aboutUs/.
- 114Serengeti Watch, About Us, http://www.savetheserengeti.org/about-us/.
- 115Id.
- 116Vergeer, supra note 95; see also Friends of Serengeti, About Friends of Serengeti, http://friendsofserengeti.org/home-2/about/; Christopher Doyle, Save the Serengeti: An ATTA Call to Action, Adventure Travel News, http://www.adventuretravelnews.com/save-the-serengeti-an-atta-call-to-action.
- 117Friends of Serengeti, About Friends of Serengeti, http://friendsofserengeti.org/home-2/about/.
- 118Tracy McVeigh, Frantic Bid to Save Wildebeest’s Serengeti Refuge, The Observer, Mar. 27, 2011.
- 119Worldwide Opposition to Serengeti Road Has Yet to Sway Tanzanian Government, African Wildlife Foundation (Mar. 15, 2011), http://www.awf.org/news/worldwide-opposition-serengeti-road-has-yet-sway-tanzanian-government.
- 120ANAW v. Tanzania, supra note 1, ¶¶ 1‑2, 5, 17.
- 121Id. ¶ 9.
- 122Id.
- 123Id. ¶¶ 10, 17.
- 124Id. ¶ 17.
- 125Id. ¶ 17(i).
- 126Id. ¶12.
- 127Id. ¶ 27.
- 128Id. ¶ 19.
- 129Id. ¶ 28.
- 130Id.
- 131Id. ¶ 6.
- 132Id.
- 133ANAW, Chronology of ANAW Lawsuit to Block the Highway, Facebook (Feb. 2, 2012), https://www.facebook.com/notes/stop-the-serengeti-highway/chronology-of-anaw-lawsuit-to-block-the-highway/344571812240687[hereinafter ANAW, Chronology].
- 134Id.
- 135Id.
- 136Attorney General of the United Republic of Tanzania v. African Network for Animal Welfare (ANAW), Appeal No. 3 of 2011, 26, Judgment, East African Court of Justice App. Div. at Arusha, (Apr. 26, 2012), http://eacj.huriweb.org/wp-content/uploads/2012/10/Appeal-Ref-No.-3-of-20111.pdf[hereinafter Tanzania v. ANAW I].
- 137ANAW v. Tanzania, supra note 1, ¶ 19.
- 138Id. ¶ 29.
- 139Id. ¶ 44.
- 140ANAW, Chronology, supra note 134.
- 141Tanzania v. ANAW II, supra note 2, ¶ 59 (summarizing lower court’s findings).
- 142Id. ¶ 22–29. The Court cited Article 151 which provides that the protocol “non-conclusion of a protocol does not oust obligations placed on a Partner State by the Treaty itself.” Article 153(1) which the Court cited to buttress its conclusions provides that: “This Treaty and all instruments of ratification and deposit of instruments shall be deposited with the Secretary General who shall transmit certified true copies thereof to all the Partner States.” In addition, there was no evidence that Tanzania or any other Partner State never ratified EACT; however, there was evidence, the Court noted, that Tanzania ratified the Treaty on June 28, 2000. Tanzania was therefore bound by each provision within the EACT according to the court. The Court therefore held that Chapter Nineteen, which relates to the environment, is binding on Tanzania and therefore overruled this as a basis for objecting to the suit.
- 143Id. ¶ 82.
- 144Id.
- 145Id. ¶ 3.
- 146Id. ¶ 4.
- 147Id. ¶ 3.1.
- 148Id. ¶ 3. Article 111(1)(b) of the Establishment Treaty provides in part that the Partner States shall undertake to take actions “for the protection and conservation of the natural resources and environment against all forms of degradation and pollution arising from developmental activities”; Article 112(1)(e) commits the Partner states to “integrate environmental management and conservation measures in all development activities such as trade, transport, agriculture, industrial development, mining and tourism in the Community”; Article 113 contains commitments on preventing the illegal trade in and movement of toxic chemicals, substances and hazardous wastes; while Article 114(1(a) obliges Partner States to “take necessary measures to conserve their natural resources”.
- 149Id.
- 150Id.
- 151Id. ¶ 5.
- 152Id.
- 153Id. ¶¶ 33–39.
- 154Id. ¶ 22.
- 155Id. ¶ 23.
- 156Id. ¶ 24.
- 157Id. ¶ 25.
- 158Id.
- 159Id.
- 160Id. ¶ 40.
- 161Id. ¶ 47.
- 162Id. ¶ 48.
- 163Id. ¶ 49.
- 164Id.
- 165Id. ¶¶ 50–56.
- 166Id. ¶ 51. According to the court, Article 23(1) names the EACJ a “judicial body” with the ability to “ensure” the Partner States adhere to their EACT obligations. Id. ¶ 53. In order to be a judicial body and fulfill its role to hold Partner States accountable to the EACT, the Court must have the attributes of other judicial bodies, such as the ability to grant permanent injunctions. Id. Additionally, Rule 1(2) of the Court’s Rules of Procedure provides that nothing in the Rules may, “limit or otherwise affect the inherent power of the Court to make such orders as may be necessary for the ends of justice,” like a prohibition granting permanent injunctions against Partner States. Id. ¶ 54.
- 167Id. ¶ 55.
- 168Id. ¶ 58–80.
- 169Id. ¶ 64.
- 170Id.
- 171Id. ¶ 67.
- 172Id. ¶¶ 68–70.
- 173Id. ¶ 71.
- 174Id. ¶ 75.
- 175Id. ¶ 76.
- 176Id. ¶ 74.
- 177Id. ¶¶ 75, 79–80.
- 178Id. ¶ 81.
- 179Id. ¶ 82.
- 180On the backlash against Africa’s international courts, see Karen J. Alter et al., Backlash Against International Courts in West, East and Southern Africa: Causes and Consequences, Eur. J. Int’l L. (forthcoming 2016).
- 181Interview with Saitabao Ole Kanchory, supra note 89.
- 182Tanzania v. ANAW I, supra note 137, at 11.
- 183Hillary Nsambu, “East African Court of Justice President Bids Farewell,” New Vision, 29th May, 2014 available at https://celebritynewshabari.wordpress.com/2014/05/29/east-africa-court-of-justice-president-bids-farewell/.
- 184This trend may have begun on the human rights side with the Appellate Division cutting back against the expansive holdings of the First Instance Division, see, for example, Omar Awadh and 6 Others v. Attorney General of Uganda, Appeal No. 2 of 2012 at 15 Eastern African Court of Justice App. Div. (Apr. 15. 2013), http://eacj.huriweb.org/wp-content/uploads/2013/09/AG_Uganda_v_Omar_Awadh_and_6_Others.pdf(strictly construing the two month limitation for bringing cases and reversing the invocation of the doctrine of continuing violations adopted by the First Instance Division).
- 185SERAP v. Nigeria, supra note 3, ¶ 2.
- 186Id.
- 187Id. ¶¶ 1–2.
- 188Id. ¶ 3.
- 189Id. ¶¶ 6–8.
- 190Id. ¶ 7.
- 191Id. ¶¶ 9–10.
- 192Niger Delta, Wikipedia (Sept. 1, 2015), https://en.wikipedia.org/wiki/Niger_Delta;SERAP v. Nigeria, supra note 3, ¶¶ 12–13.
- 193SERAP v. Nigeria, supra note 3, ¶¶ 12–13.
- 194Id. ¶ 18.
- 195Id. ¶ 19(a).
- 196Id. ¶¶ 19(b)–(d).
- 197Id. ¶¶ 19(c)–(d).
- 198Id. ¶¶ 19(e)–(j).
- 199Id. ¶¶ 24–27.
- 200Id. ¶ 28.
- 201Id. ¶ 36.
- 202Id. ¶¶ 35–40.
- 203Id. ¶ 63.
- 204Id. ¶¶ 64–72.
- 205Id. ¶ 64.
- 206Id.
- 207Id. ¶ 65.
- 208Id.
- 209Id. ¶ 67.
- 210Id.
- 211Id. ¶ 68.
- 212Id. ¶ 74.
- 213Id. ¶ 79.
- 214Id.
- 215Id. ¶ 82.
- 216Id. ¶ 101.
- 217Id. ¶¶ 107, 98.
- 218Id. ¶ 109.
- 219See id. ¶¶ 106–09.
- 220Id. ¶¶ 113–17.
- 221Id. ¶ 119.
- 222Id. ¶ 121.
- 223SERAC v. Nigeria, supra note 4.
- 224Id. ¶ 1.
- 225Id. ¶ 3.
- 226Id. ¶ 4.
- 227Id.
- 228Id. ¶¶ 5, 7–8.
- 229Id. ¶ 9.
- 230Id. ¶ 10.
- 231Id. ¶¶ 12–34.
- 232Id. ¶¶ 35–42.
- 233Id. ¶¶ 41.
- 234Id. ¶ 50.
- 235Id. ¶¶ 50–53.
- 236Id. ¶ 58.
- 237Id. ¶ 45.
- 238Id. ¶¶ 58–67.
- 239Id. ¶ 60.
- 240Id. ¶¶ 61–63.
- 241Id. ¶¶ 65–66.
- 242Id. ¶ 68.
- 243Id. ¶ 69.
- 244Friends of Lake Turkana Trust v. The Honorable Attorney General and The Kenya Power & Lighting Company Ltd., ELC Suit No. 825 of 2012, Environment and Land Court at Nairobi (May 19, 2014) [hereinafter Friends of Lake Turkana Trust v. Kenya].
- 245Id. at 1; see also Our Work, Friends of Lake Turkana, http://www.friendsoflaketurkana.org/our-work/projects.
- 246Friends of Lake Turkana Trust v. Kenya, supra note 245, at 1–2.
- 247Id.
- 248Id.
- 249Id. at 3.
- 250Id. at 2.
- 251Id. at 3.
- 252Id. at 2.
- 253Id.
- 254Id. at 5.
- 255Id.
- 256Id.
- 257Id.
- 258Id. at 4.
- 259Id.
- 260Id.
- 261Id. at 7–8.
- 262Id. at 7.
- 263Id. at 8.
- 264Id.
- 265Id. at 11.
- 266Id. at 11–12.
- 267Id. at 11.
- 268Id.
- 269Id.
- 270Id.
- 271Id. at 12.
- 272Id.
- 273Id.
- 274Id. at 13.
- 275Id.
- 276Constitution of Kenya art. 10 (2010).
- 277Id. at art. 35.
- 278Friends of Lake Turkana Trust v. Kenya, supra note 245, at 14.
- 279Id. at 15.
- 280Id. at 16.
- 281Id. at 17.
- 282Id. at 19.
- 283Id.
- 284Id. at 20.
- 285Id. at 16.
- 286Id. at 15.
- 287Discussed in Zambezi Resources Limited, June 2015 Quarterly Operations Report, (July 3, 2015), www.zambeziresources.com/_content/documents/1120.pdf [hereinafter Zambezi Resources].
- 288Id. at 1.
- 289Id.
- 290Id. at 2.
- 291Id.
- 292Id. at 1.
- 293Id. at 1–2.
- 294Id. at 1.
- 295Id.
- 296Paul Steyn, Lower Zambezi National Park Mining Project is ‘Fatally Flawed,’ says Report, National Geographic, Nov. 14, 2014, http://voices.nationalgeographic.com/2014/11/14/lower-zambezi-national-park-mining-project-is-fatally-flawed-says-report/.
- 297Zambezi Resources, supra note 289, at 2.
- 298Steyn, supra note 298.
- 299Id.
- 300Dr. Kellie Leigh, Evaluation Report: Kangaluwi Open-pit Copper Mine in the Lower Zambezi National Park, prepared for Lower Zambezi Tourism Association (Nov. 2014).
- 301Id. at 2.
- 302Id. at 2–3.
- 303Id. at 3–4.
- 304Id. at 4.
- 305Id.
- 306Id. at 40.
- 307Id.
- 308Id. at 42.
- 309Id. at 45.
- 310Id.
- 311See Constitution of Kenya, supra note 278, at art. 42 (2010) (providing that “Everyone has a right to a healthy and clean environment.”).
- 312Fuel Retailers Ass’n of South Africa v. Director Gen, Envt’l Mgmt. of Agric., Conserv. & Mgmt., Mpumalanga Province & Others, 2007 (6) SA 4(CC) paras. 39G–40F. For an international survey of the role of national judiciaries, see Louis J. Kotze & Alexander R. Paterson, (eds) The Role of the Judiciary in Environmental Governance: Comparative Perspectives, (2009) (Book also discusses the Johannesburg Principles on the Role of Law and Sustainable Development, adopted by the Global Judges Symposium, 2002).
- 313ANAW v. Tanzania, supra note 1.
- 314Id. at ¶ 48.
- 315Id.
- 316SADC Tribunal Protocol, 2000, available at http://www.sadc.int/documents-publications/
show/Protocol_on_the_Tribunal_and_Rules_thereof2000.pdf. - 317Joel Trachtman, Conflict of Norms in Public International Law: How WTO Law Relates to Other Rules of International Law, 98 Am. J. Int’l L. 859 (2004) (book review) (arguing that “even if other international law were to modify WTO law under international law generally, these modifications would not be applicable in WTO dispute settlement”).
- 318For a similar analysis in the context of the ECOWAS Court of Justice, See Alter et al., supra note 11.
- 319Hari M. Osofsky, Learning from Environmental Justice, 24 Stan. Envtl. L. J. 71 (2005).
- 320Alfred Rest, Need for an International Court for the Environment? Underdeveloped Legal Protection for the Individual in Transnational Litigation, 24 ENVTL. L. & POL'Y 173 (1994). For a review of the 1992 effort of the International Court of the Environment Foundation, see Ole W. Pedersen, An International Environmental Court and International Legalism, 24 J. Envtl L, 547 (2012)
- 321Osofsky, supra note 321.
- 322Id.
- 323Gathii, Mission Creep, supra note 10.
- 324See Second Preambular Paragraph of GATT 1947 as amended in 1994, GATT 1994: General Agreement on Tariffs and Trade 1994, Apr. 15, 1994, Marrakesh Agreement Establishing the World Trade Organization, Annex 1A, THE LEGAL TEXTS: THE RESULTS OF THE URUGUAY ROUND OF MULTILATERAL TRADE NEGOTIATIONS 17 (1999), 1867 U.N.T.S. 187, 33 I.L.M. 1153 (1994) providing in part “Recognizing that their relations in the field of trade and economic endeavor should be conducted with a view to raising standards of living, ensuring full employment and a large and steadily growing volume of real income and effective demand…”; and the Marrakesh Agreement Establishing the World Trade Organization, Apr. 15, 1994, THE LEGAL TEXTS: THE RESULTS OF THE URUGUAY ROUND OF MULTILATERAL TRADE NEGOTIATIONS 4 (1999), 1867 U.N.T.S. 154, 33 I.L.M. 1144 (1994) providing in the first preambular paragraph that the Parties to this agreement rec WTO Agreement: recognize “their relations in the field of trade and economic endeavor should be conducted with a view to raising standards of living, ensuring full employment and a large and steadily growing volume of real income and effective demand expanding the production of and trade in goods and services, while allowing the optimal use of the world’s resources in accordance with the objective of sustainable development, seeking both to protect and preserve the environment and to enhance the means of doing so in a manner consistent with their respective needs and concerns at different levels of development,” id.
- 325Article 9 Agreement on Trade-Related Aspects of Intellectual Property Rights, Apr. 15, 1994; Marrakesh Agreement Establishing the World Trade Organization, Annex 1C; THE LEGAL TEXTS: THE RESULTS OF THE URUGUAY ROUND OF MULTILATERAL TRADE NEGOTIATIONS 320 (1999), 1869 U.N.T.S. 299, 33 I.L.M. 1197 (1994) [hereinafter TRIPS Agreement].
- 326TRIPS Agreement, supra note 327, at art. 8.1.
- 327For a view that such ‘soft’ commitments to human rights are included in trade treaties in the context of West, East and Southern Africa, see Alter et al., Backlash Against International Courts in West, East and Southern Africa, supra note 181.
- 328For example, in the WTO, preambular provisions have been held by the Appellate Body as only capable of adding color and texture (rather than a different interpretation than that found in the substantive provisions), see US — Shrimp, para. 153 (WT/DS58/AB/R) where the Appellate Body held that the language of the Preamble of the WTO Agreement “demonstrates a recognition by WTO negotiators that optimal use of the world’s resources should be made in accordance with the objective of sustainable development. As this preambular language reflects the intentions of negotiators of the WTO Agreement, we believe it must add colour, texture and shading to our interpretation of the agreements annexed to the WTO Agreement, in this case, the GATT 1994,” id. For more, see James Gathii, The Legal Status of the Doha Declaration on TRIPS and Public Health Under the Vienna Convention of the Law of Treaties,” 15 Harv. J. Law & Tech 291 (2002).
- 329James Gathii, African Regional Trade Agreements as Legal Regimes (2011).
- 330Penelope Simons, International Law’s Invisible Hand and the Future of Corporate Accountability for Violations of Human Rights, 3 J. Env’t. & Hum. Rts. 5, 33 (2012).
- 331For more on this, see Don Deya, Worth the Wait: Pushing for the African Court to Exercise Jurisdiction for International Crimes, Open Society Initiative for Southern Africa, (Mar. 6, 2012), http://www.osisa.org/sites/default/files/is_the_african_court_worth_the_wait_-don_deya.pdf.
- 332SERAC v. Nigeria, supra note 4, ¶ 68.
- 333For an excellent analysis, see Carmen Gonzalez, Environmental Justice, Human Rights and the Global South, 13 Santa Clara J. Int’l L. 162‑63 (2015), and Karin Mickelson, Leading Towards a Level Playing Field, Repaying Ecological Debt, or Making Environmental Space: Three Stories About International Environmental Cooperation, 43 Osgoode Hall L. J. 250‑54 (2005).
- 334For caution in thinking about judicial interventions in favor of environmental protection in another context, see Balakrishnan Rajagopal, Limits of Law in Counter-Hegemonic Globalization: The Indian Supreme Court and the Narmada Valley Struggle, Center for the Study of Law and Governance (Jawajarlal Nehru University, Working Paper, CASLG/WP/04, 2004) available at http://www.jnu.ac.in
cslg/workingPaper/04-Limits%20Law(Rajagopal).pdf.