Crucial African Court decision follows Ivory Coast environmental disaster

28 September 2023 · Carmel Rickard

Judges and lawyers in increasing numbers of African countries are dealing with cases involving environmental or climate change issues. A significant new decision by the African Court on Human and Peoples’ Rights will give those who work in these fields some important additional jurisprudence. The court was dealing with a case, sensational at the time, concerning a load of highly toxic waste, off loaded in Abidjan, Ivory Coast in 2006. After the waste was dumped in various sites around Abidjan, 17 people died from toxic gas inhalations, the health of an estimated 100 000 others were affected to various degrees, while environmental experts said there had also been severe groundwater contamination. The applicants, human rights organisations in Ivory Coast, asked the African court to find that rights were violated by the government, and to order a series of reparations. Though the government of Ivory Coast protested about the entire application, the court has now made a slew of findings about the state’s violation of rights in relation to the scandal and has issued several orders against the state. They include an order giving Ivory Coast a year to implement legislative reforms that will enforce a ban on the import and dumping of hazardous waste in compliance with the international conventions to which the state is a party.

Read judgment

The applicants who brought the case to the African Court on Human and Peoples’ Rights included two human rights organisations based in Ivory Coast and the Paris-based International Federation for Human Rights. At the heart of their application are allegations that the human rights of many victims were violated when toxic waste was dumped in Abidjan during August 2006.

Ivory Coast has officially withdrawn its approval for Ivorian individuals and NGOs with observer status at the African Commission on Human and Peoples’ Rights, to be heard by the African court in matters against Ivory Coast. However, because of the time frame on such withdrawals taking effect, the court was still able to deal with this case.

It concerns the August 2006 arrival in Abidjan of a ship laden with toxic waste. The waste belonged to the company Trafigura, and it was passed on to another outfit, Tommy, to dispose of. Dumped in Abidjan, the noxious waste quickly caused health problems, along with a public outcry when people discovered what had happened.

Ultimately, 17 people died and the health of some 100 000 others was affected.

Three executives from Trafigura were arrested in Ivory Coast and charged under laws against pollution of public health and the environment. Some government officials were suspended from office; so were some officials of Tommy.

Guarantees

Early in 2007, the government signed a deal with Trafigura in terms of which the company agreed to pay USD198 million for reparations and cleaning up the waste. However, Trafigura would only release the funds once guarantees were provided that the arrested company officials would be allowed to leave the country and that Ivory Coast would withdraw all ‘present and future’ civil action legal against the company.

In a series of cases, the courts of Ivory Coast convicted certain officials from companies implicated in the dumping scandal, other than Trafigura, but according to the applicants in the African court case, many victims were not paid compensation.

The applicants said many rights had been violated by Ivory Coast’s actions. For example, the right to an effective remedy and to seek redress for harm suffered was violated by the government’s deal with Trafigura.

The applicants also asked the court to order that the government ensure medical help to victims, roll out an adequate and effective compensation programme for victims and implement reforms to improve the handling of waste by ‘adopting environmentally friendly methods’, and implementing law reforms ‘prohibiting and punishing the import and dumping of hazardous waste and holding companies responsible for the protection of human rights and the environment.’

The government, however, argued that the entire action should be dismissed by the court.

Algiers Convention

Each section of the court’s response to the application and the objections raised by Ivory Coast will provide important material for lawyers and courts involved in environmental law disputes in other parts of Africa.

For example, one of the arguments by the government of Ivory Coast was to dispute the status of the Algiers Convention, cited by the applicants in support of their case.

The government had argued that the 2003 Algiers Convention on the Conservation of Nature and Natural Resources wasn’t a ‘human rights instrument’. If that argument had been upheld by the African Court, it would have undermined the usefulness of the convention in cases of this sort. But the court went the other way. The convention reflected a clear commitment by states to act in a way that prevents ‘harmful effects on the environment, especially those resulting form toxic waste and hazardous waste, said the judges.

Read with the African Charter, it meant that the state parties had ‘signed up to obligations that guarantee the enjoyment of the rights’ in the charter, in this case ‘the right to the enjoyment of the best attainable state of physical and mental health and the right to a general satisfactory environment conducive to development.’

As a result, the court said it ‘confirmed’ that the Algiers Convention was ‘indeed, … a human rights instrument’ and that in turn meant that the court could use the convention in deciding the case before it.

Bamako Convention

The judges also noted that African states had already recognised the potential problem caused by toxic waste importation and dumping. ‘This recognition is expressed, in the most solemn terms, in the preamble to the Bamako Convention, where the states declare that they are “mindful of the growing threat to human health … and the environment caused by transboundary movements of hazardous wastes.”’

Further, the court stressed that under international human rights law, states had an obligation to respect, protect, promote and implement the rights guaranteed by the conventions to which they had subscribed. This included the obligation to protect the rights of rights-holders from violation by third parties.

Under the Bamako Convention, states therefore had to ‘prevent the importation into their territory of toxic wastes whose impact on human life they should be aware of’, and, should toxic waste enter its territory, the state had an ‘obligation to act and limit and repair the harmful consequences on human life.’

In this case, the state was aware that the ship carrying Trafigura’s waste was in port and authorised the company to unload its cargo on condition that it found an outfit to treat the waste. According to the court, this authorisation amounted to a breach of the obligation not to infringe the prohibition on the import of hazardous waste contained in the Bamako Convention. Ivory Coast had an obligation to ‘prevent the dumping of the toxic waste, but failed to do so,’ the court found.

Disaster

It's a long and detailed judgment, but one that environmental rights activists, along with the legal profession, will find crucial in future.

Among its important findings is that the special deal concluded between the government and Trafigura ‘violated the victims’ right to an effective remedy’ and that the agreement ‘is of no effect as against the victims insofar as there is no evidence that they took part, either directly or indirectly, in the negotiations leading to its conclusion.’

There was no evidence that Ivory Coast had taken steps to ensure that such a disaster doesn’t happen again, by, for example, making reforms under which victims would be able to hold legal persons, such as Trafigura, civilly or criminally liable in the domestic courts. Nor had it set up training programmes for law enforcement officials on the protection of human rights and the environment. The state was therefore ordered to set up training courses to ensure the relevant civil servants understood human rights and environmental protection issues.

Compensation fund

Among other orders by the court, Ivory Coast was ordered to establish, in consultation with the victims, a compensation fund from the amounts paid by Trifigura, topped up by the government of Ivory Coast. It must also set up an independent and impartial investigation into the ‘alleged facts’ to establish the criminal and individual liability of the perpetrators – and then prosecute them.

Even if, as seems likely, the court’s orders against Ivory Coast are ignored by the government, the judgment as a whole, with its approach, findings, citations and orders, will help to bring environmental justice issues further into the mainstream of litigation in Africa.

Carmel Rickard

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