The Mauritius Oil Spill: Using Africa’s ‘judicial environmentalism’ as an avenue for redress?

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Since the MV Wakashio ship ran aground on 25 July this year, Mauritius has been facing an unfolding human and environmental disaster. Up to 100,000 Mauritians took to the streets in late August to protest against the State’s handling of the disaster, one of the largest protests in the country in over 40 years. In this post we explore the potential for Mauritians to use the African human rights system to address the State’s handling of the oil spill, and whether the acts and omissions of Mauritius potentially violated the African Charter on Human and Peoples’ Rights (African Charter), which includes environmental rights. Such a route may be underexplored but it is not without precedent. This post will review the occurrence of ‘Judicial environmentalism’ before Africa’s Regional Economic Community (REC) Courts and two of the main bodies in the African human rights system: the African Commission on Human and Peoples’ Rights (African Commission), and the African Court on Human and Peoples’ Rights (African Court).

Context

There were thousands of tonnes of oil onboard the ship the MV Wakashio. As the ship passed through Mauritian water in August 2020 it ran aground, and 12 days later started leaking an estimated 1,000 tonnes of oil into protected wetlands and a small island bird and wildlife sanctuary. Many lamented an apparent lack of government action during this crucial stretch of time. When the government did act, its actions raised further questions. A decision was made to tow the front half of the vessel out to sea and sink it, despite organisations such as Green Peace, raising serious concerns of such a move. Some have speculated that the sinking contributed to the deaths of at least 39 dolphins, and the clean-up efforts have cost the lives of at least three people.

While important questions are being asked about the potential responsibility of various parties, notably the insurer (Japan P&I Club), the owners of the ship (Nagashiki Shipping Co Ltd), and the shipping operator (Mitsui OSK Lines Ltd), questions also remain on the responsibility of the Mauritian State. The current system of accountability at the international level pertaining to the law of the sea is complex, with various mechanisms potentially available such as the International Tribunal for the Law of the Sea (ITLOS). But where does this leave State accountability? One answer lies in the potential use of the African human rights system, which contains protections at the intersection of human rights and environmental matters, and thus is a possible avenue for redress.

Connecting African human rights and the environmental protections

Unlike many other human rights treaties, the African Charter contains several provisions linked to the protection of the environment. These include article 21 (the right of peoples to dispose of their natural resources), article 24 (right to a general satisfactory environment), as well as article 14 (the right to property), article 15 (the right to work under equitable and satisfactory conditions), and article 16 (the right to physical and mental health). These articles provide opportunities for individuals and communities to enforce rights related to environmental damage. This potential for what Gathii has referred to as ‘judicial environmentalism’ has been witnessed in a number cases (African Network for Animal Welfare (ANAW) v Tanzania (Serengeti case); Socio-Economic Rights and Accountability Project (SERAP) v Nigeria; Centre for Minority Rights Development (Kenya) and Minority Rights Group (on behalf of Endorois Welfare Council) v Kenya (Endorois case); Social and Economic Rights Action Center (SERAC) and the Center for Economic and Social Rights v Nigeria; African Commission on Human and Peoples’ Rights v Kenya (Ogiek case)).

In particular, the cases of SERAP v Nigeria and SERAC v Nigeria provide insight into how the African Commission or African Court might deal with a case brought against Mauritius. In SERAP v Nigeria, before the ECOWAS Court, the applicants alleged widespread corruption had led to State failure to provide adequate educational standards and, in particular, a violation of articles 1, 2, 17, 21 and 22 of the African Charter (para. 8). The ECOWAS Court established that even if a particular branch of the State is not directly responsible, it could be responsible ‘vicariously’ (para. 15) and, therefore, contribute to a violation (para. 17). Therefore, while SERAP v Nigeria is not an environmental case, it is still significant in the context of environmental matters as it establishes State responsibility to take action to ensure the rights of individuals and communities are fulfilled under the African Charter, even when the State is not directly at fault.

The African Commission case SERAC v Nigeria, related to Ogoniland and the consequences of the exploitation of oil reserves in the region, as well as the State’s role in the suppression of resistance to such exploitation. In its decision, the African Commission not only found that Nigeria had violated articles 2, 4, 14, 16, 18(1), 21 and 24 of the African Charter, but also that article 16 and article 24 ‘recognise the importance of a clean and safe environment that is closely linked to economic and social rights in so far as the environment affects the quality of life and safety of the individual’ (para. 51). It also found that States are obliged ‘to take reasonable and other measures to prevent pollution and ecological degradation’ (para. 52). The African Commission further stated that article 21 provides for a positive ‘duty [on the State] to protect their citizens, not only through appropriate legislation and effective enforcement, but also by protecting them from damaging acts that may be perpetrated by private parties’ (para. 57). More generally, the African Commission found that ‘collective rights, environmental rights, and economic and social rights are essential elements of human rights in Africa’ (para. 68).

Applying this case law to the stranding of the MV Wakashio, although Mauritius eventually took action to pump the remaining oil from the vessel, its inaction in the twelve days between the ship running aground and leaking, raises questions as to whether it fulfilled its duty in line with article 21 and article 24 of the African Charter, as well as associated rights, and adequately protected its citizens against the acts of other private parties. In addition, as a number of organisations contested the decision to sink the front half of the ship, questions can be raised whether Mauritius ‘facilitated the destruction’ that followed (SERAC v Nigeria, para. 58). Any argument that private parties were responsible for the initial oil leak and subsequent sinking could be countered by the finding in SERAC v Nigeria that some responsibility remains on the State (SERAC v Nigeria, para. 67). In particular, the African Commission found that the State ‘should not allow private parties to destroy or contaminate food sources, and prevent peoples’ efforts to feed themselves’ (para. 65). In addition, as local investigations continue, the SERAC v Nigeria decision also points to the need to ensure ‘independent scientific monitoring’, ‘providing information to those communities exposed to hazardous materials’, and provide ‘meaningful opportunities for individuals to be heard and to participate in the development decisions affecting their communities’ (para. 53).

Realistic avenue for Mauritians?

So can the African human rights system provide an avenue for Mauritians to challenge the State’s response to the MV Wakashio disaster? The Prime Minister of Mauritius declared that the State ‘took all appropriate actions within our existing resources […] to contain and mitigate the adverse effect of this casualty.’ However, this has been disputed by protesters, with some commentators calling for more transparency of the State’s actions and the need for an investigation into the methods and choices being made in the clean-up efforts. Whether the African human rights system can assist in establishing responsibility rests initially on whether the African Charter applies to Mauritius, and if so, do Mauritians have standing before the African Commission or Court?

To access the African human rights system, a number of hurdles need to be overcome. In particular, in order for individuals and/or NGOs with observer status to access the African Court directly there are three requirements. First, Mauritius must be a party to the African Charter; Mauritius ratified the Charter in 1992. Second, Mauritius must a party to the Protocol to the African Charter on Human and Peoples’ Rights Establishing the African Court on Human and Peoples’ Rights (Protocol); Mauritius has been a party to the Protocol since 2003. Third, Mauritius must have deposited a ‘special’ declaration in accordance with articles 5(3) and 34(6) of the Protocol. Unfortunately, at the time of writing Mauritius has yet to make such a declaration. Whilst it may appear, therefore, that we have stumbled at the last hurdle, direct access to the African Court is not the only path to it having jurisdiction. Providing an alternate route to the African Court or making a finding itself, is the African Commission. The African Commission can consider an application alleging violations of the African Charter and issue decisions, or refer communications to the African Court (rule 130, African Commission Rules of Procedure 2020, and article 5(1)(a), Protocol). Of course, irrespective of whether the complaint is heard by the African Commission or the African Court, there are still a number of admissibility criteria, such as the need to exhaust domestic remedies, that must be considered (see article 56, Charter). Therefore, there is a route for Mauritians to bring a case to the African Commission or, whilst a more complex route than for States that have deposited the Special Declaration, to the African Court via the African Commission.

Conclusion

We hope this post has demonstrated that the African human rights system provides an opportunity for Mauritians to potentially bring a case alleging their rights under the African Charter have been violated. The African Charter to which Mauritius is a party, contains several articles related to the environment. Despite the lack of a ‘special’ declaration allowing individuals and NGOs direct access to the African Court, an avenue for redress remains open at the African Commission or via a referral by the African Commission to the African Court.

But these are early days. As with other international mechanisms, national authorities must be given the opportunity to investigate and respond within a reasonable time. However, if the Mauritian government does not provide a timely, available, effective, and sufficient remedy, the African Commission and African Court remain available. Nonetheless, it should be noted that the African Court, in particular, is still in the process of defining its remedies regime. Therefore, it is somewhat premature to speculate how it would deal with specific remedies in relation to environmental matters.

In addition, this blog post has focused on the Mauritian State, but it would be remiss not to finish this post by noting that other avenues could be explored for the potential responsibility of other parties for their role in the MV Wakashio disaster. However, as the investigation into what happened and how the State has responded develop, the people of Mauritius retain a backstop to hold their State accountable for the choices and actions in its response to the disaster.

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