© Nova univerza, 2018 DIGNIT AS Revija za človekove pravice Slovenian journal of human rights ISSN 1408-9653 Climate Change and Socio-Economic Rights Duties in Nigeria Ademola Oluborode Jegede Article information: To cite this document: Oluborode Jegede, A. (2017). Climate Change and Socio-Economic Rights Duties in Nigeria, Dignitas, št. 73/74, str. 13-44. Permanent link to this doument: https://doi.org/ 10.31601/dgnt/73/74-2 Created on: 16. 06. 2019 To copy this document: publishing@nova-uni.si For Authors: Please visit http://revije.nova-uni.si/ or contact Editors-in-Chief on publishing@nova-uni.si for more information. This work is licensed under a Creative Commons Attribution-NonCommercial 4.0 International License. 13 DIGNITAS n Climate change and socio-economic rights duties in Nigeria Climate change and socio-economic rights duties in Nigeria Ademola Oluborode Jegede 1 1 AbSTrACT Key global climate change instruments, in particular, the Unit- ed Nations Framework Convention on Climate Change, Kyoto Protocol and the recently adopted Paris Agreement emphasise the importance of climate change mitigation actions in develop- ing states. Generally, resolutions linking climate change to human rights, for instance, from the United Nations Human rights Coun - cil and the African Commission on Human and Peoples’ rights also call upon states to ensure human rights in climate actions. While the implementation of mitigation actions has the potential to enhance the realisation of socio-economic rights in developing states, climate instruments which govern their implementation have not been articulated in terms of duties of states to ensure that end. This article clarifies states’ duties under international cli- mate change related instruments to ensure socio-economic rights in mitigation actions. It then contends legitimate expectation and the existence of complementary legislation and policies as legal bases for their application in Nigeria. Keywords: Climate change instruments, legitimate expectation, mitigation measures, socio-economic rights, state’s duties 1 LLM, LLD (Pretoria), bL (Nigeria), Senior Lecturer, Public Law, University of Venda, Thohoyandou, South Africa, ademolajegede@gmail.com; ademola.jegede@univen.ac.za. 02 - Jegede.indd 13 11. 9. 2017 20:19:17 14 DIGNITAS n Pravo človekovih pravic in filozofija prava Podnebne spremembe in uresničevanje socialno-ekonomskih pravic v Nigeriji Po VzeTeK Ključni mednarodni dokumenti o podnebnih spremembah, zlasti okvirna konvencija združenih narodov o spremembi pod - nebja, Kjotski protokol in nedavno sprejet Pariški sporazum, poudarjajo pomen ukrepov za blažitev podnebnih sprememb v državah v razvoju. Na splošno resolucije, ki povezujejo podnebne spremembe s človekovimi pravicami, na primer Svet združenih narodov za človekove pravice in Afriška komisija za človekove pravice in pravice ljudstev, prav tako pozivajo države, naj zago- tovijo človekove pravice v podnebnih ukrepih. Medtem ko izva- janje omilitvenih ukrepov lahko izboljša uresničevanje socialno- ekonomskih pravic v državah v razvoju, podnebni instrumenti, ki urejajo njihovo izvajanje, niso bili artikulirani v smislu državnih obveznosti. Ta članek pojasnjuje državne obveznosti v okviru mednarodnih instrumentov, povezanih s podnebnimi spre- membami, da bi zagotovili uresničevanje socialno-ekonomskih pravic pri ukrepih za blažitev posledic. Nato zagovarja legitim- no pričakovanje in obstoj dopolnilne zakonodaje in politik kot pravnih podlag za njihovo uporabo v Nigeriji. Ključne besede: instrumenti o podnebnih spremembah, le- gitimno pričakovanje, omilitveni ukrepi, socialne in ekonomske pravice, državne obveznosti 1. Introduction Climate change is a major global challenge of the twenty-first century, despite the argument refuting its existence or contend- ing that even if it exists, it is a natural phenomenon. 2 The scientific reports of the Intergovernmental Panel on Climate Change (IPCC) 2 Climate change refers to some observable variations in the climate system that are attributable to human activities, see Chris Wold, David Hunter and Melissa Powers, Climate Change and the Law (LexisNexis 2009) 1-3; Greenpeace, Dealing in Doubt: The Climate Denial Machine v Climate Science (Greenpeace 2013); on climate change as a global challenge, see Damir Črnčec and Izvirni članek, ‘Slovenia in Geopolitical and Geostrategic environment of the 21 st Century’ (2010) 12(2) The Bulletin of the Slovenian Armed Forces 27, 52; Protection of global climate for present and future generations of mankind’ UNG.A. r es. 43/53, 70th plenary meeting 6 December 1988 (UNGA r esolution 43/53). 02 - Jegede.indd 14 11. 9. 2017 20:19:17 15 DIGNITAS n Climate change and socio-economic rights duties in Nigeria establish that climate change is real and due to human activities. 3 In its report released in 2014, the IPCC affirms that ‘the warming of the earth is unequivocal’ and the vulnerability of population to its adverse effects is increasing. 4 In response to the adverse impacts of climate change, the United Nations Framework on Climate Change Convention (UNFCCC) and subsequent instruments, namely the Kyoto Protocol, and Paris Agreement (referred to as climate pillar instruments) call on states parties to embark on adaptation and mitigation actions. 5 While adaptation refers to immediate actions to moderate harm or adjust to climate change, 6 mitigation denotes actions to either reduce the sources of greenhouse gases or en- hance the planet’s capacity to absorb them. 7 Global focus on mitigation actions is of fundamental impor- tance not only because to adapt indefinitely to climate change is unrealistic, but also that reliance on adaptation alone cannot roll back the changing climate. 8 Notable mitigation actions centre on the energy sector, and in particular, on alternative energy us- age such as the switch to hydropower, recovery of gas that would have otherwise been flared, and bioenergy through biofuels initi- atives. 9 This is because the energy supply sector is the largest con- tributor to global greenhouse gas emissions. 10 The energy related mitigation options generally fall under the Clean Development 3e stablished by the World Meteorological organisation and the United Nations environment Pro- gramme in 1988, the IPCC reviews and accesses the most recent scientific, technical and socio-eco- nomical information relating to climate change, see UNGA r esolution 43/53 (n 1)); on the science of climate change, see Thomas Stocker and others (eds.), The Physical Science basis. Contribution of Working Group I to the 5th Assessment r eport of the Intergovernmental Panel on Climate Change (Cambridge University Press 2013). 4 Stocker and others (n 2) 8-15. 5 United Nations Framework Convention on Climate Change (1992) ILM 851 (UNFCCC) art 4(1)(b); Kyoto Protocol to the United Nations Framework Convention on Climate Change (11 December 1997) 37 ILM art 10(b); the 1 st commitment by Annex 1 countries of UNFCCC required by the Protocol ended in 2012 and was extended in Doha from 1 January 2013- 31 December 2020 accessed 23 July 2017; Paris Agreement under the United Nations Framework Convention on Climate Change (2015) FCCC/CP/2015/L.9/r ev.1 6 Simon Caney, ‘Cosmopolitan Justice, r esponsibility and Global Climate Change’ (2005) 18 LeidenJo- urnal of International Law 747. 7 Jouni Paavola and Neil Adger, ‘Fair Adaptation to Climate Change’ (2006) 56 Ecological Economics 594. 8 Carbonbrief, ‘IPCC says adapt and mitigate to tackle climate risks’ 30 July 2017. 9 rajendra Pachauri and Andy r eisinger (eds.), IPCC, 2007: Climate Change 2007: Synthesis Report. Contribution of Working Groups I, II and III to the Fourth Assessment Report of the Intergovernmen- tal Panel on Climate Change (IPCC 2007) 17. 10 Thomas bruckner and others, ‘2014: energy Systems’ in ottman edenhofer and others (eds.), Cli- mate Change 2014: Mitigation of Climate Change. Contribution of Working Group III to the Fifth Assessment Report of the Intergovernmental Panel on Climate Change (Cambridge University Press 2014) 516. 02 - Jegede.indd 15 11. 9. 2017 20:19:17 16 DIGNITAS n Pravo človekovih pravic in filozofija prava Mechanism (CDM) of the Kyoto Protocol which seeks to promote sustainable development in developing states including Africa. 11 outside the energy related mitigation options, other actions tar - get forests due to their significance as a storehouse of carbon and contributor to its emission. 12 An important initiative in the forest sector is reDD+ which stands for efforts under the United Nations r educed emissions from Deforestation and Forest Degradation (UN-reDD) programme, 13 to reduce deforestation and degrada- tion and enhance the ‘+’ which represents the promotion of con- servation, sustainable management of forests and enhancement of forest carbon stocks. 14 Under the CDM, the implementation of energy focused miti- gation actions in developing states involves the developed states with commitment under the Kyoto Protocol, 15 the host countries which are often developing states, and other external actors in- cluding international financial institutions such as the Interna- tional bank for r econstruction and Development. 16 The reDD+ project involves specialised agencies of United Nations such as the Food Agricultural organisation (FA o), the United Nations environmental Programme (UNeP) and United Nations Devel - opment Programme (UNDP) as well as developing states, which host the projects, through their agencies or representatives. 17 If their effective implementation is ensured by host states, climate mitigation actions can deliver socio-economic benefits and there- fore further the realisation of socio-economic rights, particularly of the rights to water, food, housing, health, and employment in the hosting communities. 18 This is because these actions can bring 11 Kyoto Protocol (n 4) arts 6, 12 and 17. 12 Charlotte Streck and Sebastian Scholz, ‘The r ole of Forests in Global Climate Change: Whence We Come and Where We Go’ (2006) 82 (5) International Affairs 861. 13 The reDD Desk, ‘What is reDD+’ 30 June 2017; Jan Willem den besten, bas Arts and Patrick Verkooijen ‘The evolution of reDD+: An Analysis of Discursive Institutional Dynamics’ (2014) 35 environmental Science & Policy 40. 14 Willem den besten, Arts and Verkooijen (n 12) 40. 15 Kyoto Protocol (n 4) art 10. 16 Jeanette Schade and Wolfgang o bergassel, ‘Human r ights and the Clean Development Mechanism’ (2014) 27(4) Cambridge Review of International Affairs 717; see for instance, UNFCCC, ‘Project 7726: Kainji Hydropower r ehabilitation Project, Nigeria’, listing belgium, Germany, Sweden and Italy as implementation parties and International bank for r econstruction and Development as the finan- cial partner 3-4 accessed 30 June 2 017. 17 UNreDD Programme ‘The UN-reDD Programme Strategy 2011-2015’ (UN-reDD Programme Sec - retariat 2011) 1-28. 18 eva Filzmoser and others,‘The Need for a rights-based Approach to the Clean Development Mecha- ‘The Need for a rights-based Approach to the Clean Development Mecha - nism’ (Centre for International Sustainable Development Law Working Paper Series 2015) 13; Schade and obergassel (n 15). 02 - Jegede.indd 16 11. 9. 2017 20:19:17 17 DIGNITAS n Climate change and socio-economic rights duties in Nigeria about socio-economic benefits and uplift the welfare of popula- tions, particularly those living in the communities which host the projects. For instance, the development of alternative energy source can prevent environmental degradation by coal and natu- ral gas plants and the associated air and water pollution which un- dermine health and living standard. 19 Also, due to the fact that it is labour intensive, biofuel initiatives along with projects associated with gas flaring and reDD+ initiative have the potential to create more jobs and increase incomes for engaged populations. 20 The realisation of these objectives is not, however, always the case as there have been reports which generally indicate how ineffective implementation of climate mitigation actions in some countries has adversely impacted the realisation of socio-economic rights of their populations. 21 Nigeria, aside from being linked to serious environmental deg- radation involving non-state actors, 22 is a site for the implemen- tation of climate change mitigation actions such as the enhance- ment of alternative source of energies associated with prevention of gas flaring under the CDM in the Niger Delta region, 23 renew- able energy projects through biofuel initiatives in states including ekiti, ogun, benue, Jigawa, Anambra, ondo and Nasarawa, 24 and reDD+ initiative .in Cross river State (CrS). 25 The possibility that these mitigation actions will increase and impact either negatively 19 ben Machol and Sarah rizk, ‘economic Value of U.S. Fossil Fuel electricity Health Impacts’ (2013) 52 Environment International 75. 20 babajide balogun and Ayobami Salami, ‘effects of biofuel Production on Selected Local Communi- ties in Nigeria’ (2016) 7(3) Journal of Petroleum Technology and Alternative Fuels 8; Charleen Watson and others, Integrating REDD+ into a Green Economy Transition: Opportunities and Challenges (oDI 2013) 1-40. 21 United Nations, ‘r eport on the Impacts of Climate Change Mitigation Measures on Indigenous Peoples on their Territories and Lands’ e/C 19/2008/10 (Unedited version). 22 Jernej Cernic, ‘Corporate obligations under the right to a Healthy Living environment’ (2012) 3 DANUBE- Law and Economics Review 21; for a case law on this point, see Communication 155/96, So- cial and Economic Rights Action Center (SerAC) and Center for Economic and Social Rights (CESR) v Nigeria (Ogoniland case) 23 UNFCCC CDM ‘Project 0553: r ecovery of Associated Gas that would otherwise be flared at Kwale oil-gas Processing Plant, Nigeria’ accessed 9 June 2017; UNFCCC CDM ‘Project 3740 : r ecovery and Marketing of Gas that would otherwise be flared at the Asuokpu/Umutu Marginal Field, Nigeria’ accessed 9 June 2017. 24 Patrick Sekoai and Kelvin Yoro, ‘biofuel development initiatives in Sub-Saharan Africa: opportuni - ties and Challenges’ (2016) 4(2) Climate 33; Friends of the earth, Exploitation and Empty Promises: Wilmar Nigerian Land Grab’ (Friends of the earth 2015); Segun oshewolo, ‘Designed to fail? Nigeria’ Quest for biofuel’ (2012) 3(3) Afro Asian Journal of Social Sciences 1, 8. 25 Department of Climate Change Federal Ministry of environment, Abuja ‘Mitigation’ accessed 9 July 2017; UNreDD Programme ‘Part- accessed 9 July 2017; UNreDD Programme ‘Part - ner Countries’ accessed 9 July 2017; Federal r epublic of Nigeria ‘reDD+ r eadiness Preparation Proposal (r-PP)’ ( Federal Ministry of environment 2013) 6. 02 - Jegede.indd 17 11. 9. 2017 20:19:17 18 DIGNITAS n Pravo človekovih pravic in filozofija prava or positively on populations and their socio-economic rights is high. This is in the advent of a global mitigation action endorsed by the Paris Agreement which requires developing countries to take voluntary actions to mitigate climate change. 26 Despite their relevance as the international legal framework for implementing climate mitigation actions, whether the key in- ternational instruments associated with climate change provide for states’ duties to ensure that mitigation actions further the reali- sation of socio-economic rights and the legal bases to argue such duties in Nigeria are not clear. For instance, Nigeria is linked to climate pillar instruments and other instruments relating to cli- mate change and human rights developed at the United Nations levels under the auspices of the UNFCCC and United Nations Hu- man rights Council (UNHr C) as well as at the African Union level through the African Commission on Human and Peoples’ rights (the Commission), 27 but, these instruments have not been articu- lated in terms of duties for socio-economic rights in mitigation ac- tions. even if so articulated, their application in Nigeria is legally problematic in that climate pillar instruments are not yet domesti- cated in terms of article 12 of the 1999 Constitution which requires a treaty to be domesticated by a prior legislation before it can have effect in Nigeria. 28 one cannot argue against the necessity for such a prior legislation, considering that climate pillar instruments are not self-executory. Their provisions on climate mitigation actions are general in nature and will require further domestic actions for implementation. 29 This is more so the case with Nigeria which in the article 12 of its Constitution does not distinguish the nature of treaty in its requirement of a prior legislation for one to take ef- fect in Nigeria. Yet, there are other legal challenges. For instance, 26 Paris Agreement (n 4). 27U NHr C ‘Climate Change and Human rights’ A/Hr C/32/L.34 (2016) (r esolution 32/L.34); UNHr C ‘Human rights and Climate Change’ A/Hr C/26/L.33 (23 June 2014) (r esolution 23/33); UNHr C ‘Hu- man rights and Climate Change’ A/Hr C/reS/18/22 (2011) (r esolution 18/22); UNHr C ‘r eport of the office of the United Nations High Commissioner for Human rights on the r elationship between Cli- mate Change and Human rights’ A/Hr C/10/61 (15 January 2009) (oHCHr r eport); UNHr C ‘Human rights and Climate Change’ (25 March 2009) 41 st Meeting (r esolution 10/4); ACHPr ‘Climate Change and Human rights in Africa’ ACHPr/r es 342(LVIII) (2016) 58 th ordinary Session (ACHPr r esolution 342); ACHPr ‘Climate Change in Africa’ r es 271 (2014) 55 th ordinary Session (ACHPr r esolution 271); ACHPr ‘r esolution on Climate Change and Human rights and the Need to Study its Impact in Africa’ ACHPr/r es153(XLVI)09 (25 November 2009) (ACHPr r esolution 153). 28 Constitution of the Federal r epublic of Nigeria 1999. 29 UNFCCC (n 4) art 4(1)(b); Kyoto Protocol (n 4) art 10(b); Paris Agreement (n 4) art 6(1); David Sloss, ‘Non-self-executing Treaties: exposing a Constitutional Fallacy’ (2002) 301(1) University of California Davis Law Review 1; Carwz Vázquezon, ‘The Four Doctrines of Self-executing Treaties’ (1995) 89 American Journal of International Law 714. 02 - Jegede.indd 18 11. 9. 2017 20:19:17 19 DIGNITAS n Climate change and socio-economic rights duties in Nigeria although socio-economic rights are guaranteed under the African Charter on Human and Peoples’ rights (African Charter), 30 which is a part of the law in Nigeria, 31 the Constitution has no provision on socio-economic rights but only retains socio-economic objec- tives as directive principles of state policy (DPSP). 32 Hence, some authors still dispute the justiciability of socio-economic rights in Nigeria, despite the domestication of the African Charter. 33 other authors argue that justiciability can only be achieved where the legislature enacts a specific legislation seeking to implement any aspect of DPSP. 34 It is not clear whether the state has obligation under the foregoing instruments to ensure that climate mitigation actions deliver and not undermine socio-economic rights in Ni- geria. This article articulates states’ duties under international climate change related instruments to ensure that mitigation actions fur- ther the realisation of socio-economic rights at the international level and contends the legal bases for the application of such du- ties in Nigeria. The focus of the article, it should be noted from the onset, is not on the adverse effects of climate change mitigation actions on socio-economic rights. rather, the aim is to construct the argument that climate change related instruments can ground the legal basis for State’s role in ensuring that the implementation of climate mitigation actions enhances, and not undermine, socio- economic rights. Following this introduction, section two of the article establishes that states’ socio-economic rights duties in the implementation of mitigation actions under international climate change related instruments. even though the instruments are not domesticated in Nigeria, section three argues the domestic legal bases for their application in Nigeria. Section four is the conclu- sion. 30 African (banjul) Charter on Human and Peoples’ rights (adopted 27 June 1981, entered into force 21 october 1986) (1982) 21 ILM 58 (African Charter) . 31 African Charter (ratification and enforcement) Act (Cap 10, Laws of Federation of Nigeria 2004). 32 1999 Constitution (n 26) chapter II. 33 ebenezer Durojaye, ‘Litigating the right to Health in Nigeria: Challenges and Prospects’ in Magnus Killander (ed.), International Law and Domestic Human Rights Litigation in Africa (Pretoria Univer- sity Law Press 2010) 149-171; Chelushi onyemelukwe, ‘Access to Anti-r etroviral Drugs as a Compo- nent of the right to Health in International Law: examining the Application of the right in Nigerian Jurisprudence’ (2007) 7 African Human Rights Law Journal 470. 34 Akinola Akintayo, ‘A Good Thing from Nazareth? Stemming the Tide of Neo-Liberalism against Socio-economic rights: Lessons from the Nigerian case of bamidele Aturu v Minister of Petroleum r esources and others’ (2014) 15(2) Economic Social Rights Review 5; Stanley Ibe, ‘Implementing economic, Social and Cultural rights in Nigeria: opportunities and Challenges’ (2010) 10 African Human Rights Law Journal 197. 02 - Jegede.indd 19 11. 9. 2017 20:19:17 20 DIGNITAS n Pravo človekovih pravic in filozofija prava 2. States’ Duties on Socio-economic rights in Global Climate Change Mitigation Actions The obligation to comply with internationally recognised hu- man rights under the United Nations instruments including the International Covenant on economic, Social and Cultural rights (ICeSCr), requires three levels of duty from states: the duty to re - spect, protect and fulfil human rights. 35 The obligation to respect signifies that states must refrain from interfering with or hinder- ing the enjoyment of human rights. The obligation to protect de- mands that individual and groups should be protected from hu- man rights abuses, especially by non-state actors and provide for effective remedies should that happen. The obligation to fulfil re- quires states to take positive action to facilitate the enjoyment of basic human rights. 36 These duties are qualified in article 2 (1) the ICeSCr which requires states ‘to take steps’ to the maximum of their available resources to achieve progressively the full realiza- tion of economic, social and cultural rights. This provision, how- ever, is not a blanket for states to do nothing, as they must take at least some steps toward the realisation of the rights in question immediately, with others to follow as soon as objectively possi- ble. 37 Applied in the context of climate change mitigation actions, progressive realisation of socio-economic rights by developing states is virtually non-existent. They act as the hosts of mitigation actions funded by developed states and or through international financial institutions and in other instances, the United Nations Agencies. For instance, projects under the CDM are implemented by developed states with financial support from international fi- nancial institutions in developing states, 38 while reDD+ projects are financially anchored through the United Nations Agencies. 39 essentially, duties required of developing states are both nega- 35U NCHr ‘General Comment 3: The Nature of States Parties’ obligations (Art. 2, Para. 1, of the Cove - nant)’ in ‘Note by the Secretariat, Compilation of General Comments and General r ecommendations adopted by Human rights Treaty bodies’ (2008) UN Doc HrI/GeN/1/r ev.9 (Vol. II). 36 Christof Heyns and Danie brand, ‘Introduction to Socio-economic rights in the South African Constitution’ (1998) 9 Law Democracy and Development 153; Asbjørn eide, ‘r ealisation of Social and economic rights and the Minimum Threshold Approach’ (1989)10 (2) Human Rights Law Journal 37; Henry Shue, Basic Rights: Subsistence, Affluence, and U.S. Foreign Policy (2 nd edn Princeton Uni- versity Press 1980) 52. 37 Shade and obergassel (n 15) 160. 38i bid. 39U NreDD Programme Strategy (n 16). 02 - Jegede.indd 20 11. 9. 2017 20:19:17 21 DIGNITAS n Climate change and socio-economic rights duties in Nigeria tive and positive in nature. For instance, the obligation to respect means that the state itself should not participate or allow a mitiga- tion project which interferes with the existing enjoyment of socio- economic rights of its citizens. The duty to protect requires a posi- tive commitment on the State to formulate appropriate legislation to protect the bearers of rights from unwarranted interference by private or non-state parties involved in the implementation of cli- mate mitigation actions and where such rights are interfered with, that effective remedies are available. The obligation to fulfil is also of a positive nature in that it requires a state where climate mitiga- tion measure is being implemented to ensure that communities hosting such projects ultimately receive its benefits as promised. Development under the treaty monitoring body to the ICeSCr, that is, the Committee of economic Social Cultural rights (CeSCr) confirms the above layers of duty. 40 It shows that effective imple- mentation of climate change mitigation actions is a core aspect of states’ duties on socio-economic rights. This conclusion is based on General Comments and Concluding observations of the Ce - SCr which noted the negative effects that climate change may generally have, in particular, on the rights to water, food, adequate housing, and health. For instance, in delineating states’ obliga- tions in General Comment No 15, the CeSCr urges states parties to adopt strategies and programmes that address developments such as climate change which may hamper the realisation of the right to water. 41 on the right to food which General Comment No 12 explains, the CeSCr urges states parties to note that normative elements of the right to food, that is, the availability, accessibility, acceptability and safety, can be adversely affected by climatic and ecological factors. It therefore urges states parties to adopt appro- priate actions to ensure that climate change does not adversely affect the right to food. 42 While setting out states’ obligations un- 40 The Committee was established to carry out the monitoring functions assigned to the United Nati- ons economic and Social Council (e CoSoC) in Part IV of the International Covenant on economic and Social Cultural rights, see oHCHr ‘The economic and Social Council r esolution 1985/17’ (28 May 1985). 41 UN ‘General Comment No. 15: The right to Water (Arts. 11 and 12 of the Covenant)’ in ‘Note by the Secretariat, Compilation of General Comments and General r ecommendations adopted by Human rights Treaty bodies’ (2008) UN Doc HrI/GeN/1/r ev.9 (Vol. II) para 28; Marcos orellana, Miloon Kothari and Shivani Chaudhry, Climate Change in the Work of the Committee on Economic, Social and Cultural Rights (Friedrich ebert Stiftung 2010) 21. 42 UN ‘General Comment No 12: The right to Adequate Food (Art. 11)’ in ‘Note by the Secretariat, Compilation of General Comments and General r ecommendations adopted by Human rights Treaty bodies’ (2008) UN Doc HrI/GeN/1/r ev.9 (Vol. II) paras 4 and 7. 02 - Jegede.indd 21 11. 9. 2017 20:19:17 22 DIGNITAS n Pravo človekovih pravic in filozofija prava der General Comment No 4 on the right to adequate housing, the CeSCr indicates that security of tenure, availability, accessibility, location, affordability, habitability and cultural adequacy of hous- ing can be adversely affected by right to adequate housing may be adversely affected by climatic and ecological considerations. 43 In relation to the right to health, the CeSCr once expressed the concern in its Concluding observation dealing with Nigeria that environmental degradation can undermine the attainment of the right to health. 44 The general call on states by general comments and concluding observations to adopt strategies, programmes and measures suggests that they should ensure that climate change mitigation actions address and not contribute to the negative ef- fects of climate change on socio-economic rights to water, food, adequate housing, and health. The reference to climate change in the development on human rights law as further reinforced in climate related instruments, ar- guably, validates the latter as a normative basis for ensuring socio- economic rights in climate mitigation measures. To articulate the point in particular terms, the UNFCCC and Kyoto Protocol pro- visions for climate change mitigation actions in articles 4(1) (b) and 2 (1)(a) respectively do not refer to socio-economic rights, but, the Paris Agreement adopted by states in December 2015, leaves no doubt that in implementing mitigation actions, states have obligations toward socio-economic rights. It provides that ‘Parties should, when taking action to address climate change, re- spect, promote and consider their respective obligations on hu- man rights’. 45 being a core category of human rights, not only has this provision inferentially accommodated socio-economic rights, but considering that the Paris Agreement is made in pursuit of the objective of the UNFCCC, 46 the provision cures the gap in the lat- ter instruments in relation to duties of states on socio-economic rights. Arguably too, the UNFCCC and Paris Agreement are a prod- uct of negotiation by states and fall under the category of general and particular conventions (treaties) created by the consent of 43 UN ‘General Comment No. 4: The right to Adequate Housing (Art. 11 (1) of the Covenant)’ in ‘Note by the Secretariat, Compilation of General Comments or General recommendations adopted by Hu- of General Comments or General r ecommendations adopted by Hu- man rights Treaty bodies’ (2004) HrI/GeN/1/r ev.7 para 18. 44U N economic and Social Cultural rights Committee ‘Concluding observations, Nigeria’ (13 May 19980) e/C.22/1/Add.23 para 29. 45 Paris Agreement (n 4) preamble. 46 ibid. 02 - Jegede.indd 22 11. 9. 2017 20:19:18 23 DIGNITAS n Climate change and socio-economic rights duties in Nigeria states under international law. 47 Hence, based on the principle of pacta sunt servanda, 48 the instruments as well as decisions and guidelines emanating under them, in so far as they are relevant to socio-economic rights duties in climate change mitigation actions should have a binding effect of law on parties to the instruments. examples of such decisions and guidelines are not difficult to be highlighted. The evidence that in implementing climate mitiga- tion measure, states have duties toward socio-economic rights can be inferred from the decisions of Conference of Parties (CoP), the highest decision making of the UNFCCC at Cancun which set out the safeguards that should be respected at the national level while implementing reDD+. According to paragraph 2 of Appendix 1 of the Cancun Agreements, 49 the safeguards require ‘respect for the knowledge and rights of indigenous peoples and members of local communities by taking into consideration relevant interna- tional obligations, national circumstances and laws,’ and ensuring their ‘full and effective participation’. 50 Arguably, the reference to ‘relevant international obligations’ in the instrument suggests that the duties to respect, protect and fulfill rights are not exempted. Supporting this understanding, a subsequent decision of the CoP requires that states parties should through national communica- tions and other channels, indicate their level of compliance with these safeguards. 51 In effect, the decision signifies that compliance with the terms of the safeguards in relation to socio-economic rights while implementing reDD+ safeguards at the national level is required. A similar evidence can be drawn from the Sustainable Development Tool (CDM SD Tool) which is designed to guide the implementation of mitigation projects under the CDM. 52 The CDM SD Tool emphasises a range of socio-economic objectives which 47 UN ‘Statute of the International Court of Justice’ (18 April 1946) art 38(1). 48 Vienna Convention on the Law of Treaties (23 May 1969) 331 UNTS 1155 art 26(1). 49 UNFCCC ‘Conference of Parties’ accessed 9 July 2017; UNFCCC ‘The Cancun Agreements: outcome of the work of the Ad-hoc Working Group on Long- term Cooperative Action under the Convention’ (Decision 1/CP.16 ) FCCC/CP/2010/7/Add.1. 50 Decision 1/CP.16 (n 47) paras c and d. 51 UNFCCC CP 'Guidance on Systems for Providing Information on How Safeguards are addressed and respected and Modalities relating to Forest r eference emission Levels and Forest r eference Levels as referred to in Decision 1/CP.16’ Decision 12/CP.17, FCCC/CP/2011/9/Add.2 (Decision 12/ CP.17); also see UNFCCC CP ‘The Timing and the Frequency of Presentations of the Summary of in- The Timing and the Frequency of Presentations of the Summary of in- formation on how all the Safeguards referred to in Decision 1/CP.16, appendix I, are being addressed and respected’ Decision 12/CP.19, FCCC/CP/2013/10/Add.1 (Decision 12/CP.19). 52 Voluntary Tool for describing sustainable development co-benefits of CDM project activities or programmes of activities (Po A) Version 01.1 (CDM SD Tool) accessed 9 July 2017. 02 - Jegede.indd 23 11. 9. 2017 20:19:18 24 DIGNITAS n Pravo človekovih pravic in filozofija prava should guide stakeholders while implementing projects. These in- clude the delivery of social economic goods in terms of enhanc- ing food, 53 health, 54 employment, 55 and environment, 56 and prop- erty security. 57 The logical conclusion that can be drawn from the foregoing is that states including those hosting mitigation actions associated with CDM and reDD+ are expected to be guided by the socio-economic standards under the CDM Tool and the Can- cun Safeguards in the implementation of actions. The above position is further strengthened by the resolutions of the UNHr C and the Commission dealing with climate change and human rights which suggest that states’ duties toward socio- economic rights exist in climate change mitigation actions. 58 The UNHr C report which was produced pursuant to its first resolu- tion in 2009 describes the effects of climate change and ineffec- tive implementation of response actions on a range of socio-eco- nomic rights including, the right to adequate food, the right to adequate water, the right to health, and the right to adequate hous- ing. 59 Against that backdrop, UNHr C r esolution 18/22 of 2011, r esolution 26 /33 of 2014 and r esolution 32/34 of 2016 affirm the necessity for states to integrate human rights, which necessarily includes socio-economic rights in climate change mitigation ac- tions. 60 At the AU level, the Commission expressed a clear indica- tion of the potential link of climate change mitigation measure to human rights in its r esolution 153 of 2009. 61 In that r esolution, the Commission expressed the concern that human rights stand- ards are lacking in ‘various draft texts of the conventions under negotiation’ and that this lack could jeopardise ‘the life, physical integrity and livelihood of the most vulnerable members of soci- ety notably isolated indigenous and local communities, women, and other vulnerable social groups’. 62 The resolution has been fol- 53 ibid 6-8. 54 ibid 6. 55 ibid. 56 ibid 3. 57 ibid 4-6. 58 John Knox, ‘Linking Human rights and Climate Change at the United Nations’ (2009) 33 Harvard Environmental Law Review 477; Marc Limon, ‘Human rights and Climate Change: Constructing a Case for Political Action’ (2009) 33 Harvard Environmental Law Review 439. 59 oHCHr r eport (n 25) paras 21-38, 65-68. 60 r esolution 32/L.34 (n 25) preamble; r esolution 23/33 (n 25) preamble; r esolution 18/22 (n 25) preamble. 61 ACHPr r esolution 153 (n 25). 62 ibid preamble. 02 - Jegede.indd 24 11. 9. 2017 20:19:18 25 DIGNITAS n Climate change and socio-economic rights duties in Nigeria lowed by r esolution 127 of 2014 63 and r esolution 342 of 2016. 64 In particular, r esolution 342 does not only reiterate the provisions of articles 22 and 24 of the African Charter dealing with the right of peoples to economic, social and cultural development and the right of peoples to a satisfactory environment favourable to their development, it urges every state to ensure climate change actions which safeguard the rights of the present and future generations of Africa. 65 one may argue that the resolutions above are generally not le - gally binding on states, however, there can be exception in terms of their legal effect depending on a number of factors includ- ing the source of the resolutions or subsequent use by domestic courts. 66 For instance, while the General Assembly (GA) resolu- tions are recommendatory as a rule, 67 especially regarding exter- nal relations with member states, 68 same cannot be submitted re- garding the legal weight of resolutions of the United Nations Se- curity Council in relation to international peace and security, 69 or on the enforcement under Chapter VII of the UN Charter which carries more political weight and are binding due to the global premium placed on peace and security, 70 and its acceptable sta- tus as obligation erga omnes. 71 A parallel analogy can be made in relation to resolutions on climate change and its mitigation actions. They are as important as resolutions dealing with inter- national peace in that the subject of climate change constitutes a well acknowledged global threat to mankind. 72 Hence, the obliga- tions imposed under the resolutions including those dealing with socio-economic rights in climate change mitigation context can constitute obligations erga omnes in respect of which all states 63 ACHPr r esolution 127 (n 25). 64 ACHPr r esolution 342 (n 25). 65 ibid. 66 Frans Viljoen, International Human Rights Law in Africa (2 nd edn oxford University Press 2012) 31. 67 South West Africa (Ethiopia v S Africa; Liberia v S Africa) (Second Phase) [1966] ICJ r ep 6 (South West Africa) para 98; see Marko Öberg, ‘The Legal effects of r esolutions of the UN Security Council and General Assembly in the Jurisprudence of the ICJ’ (2006) 16(5) The European Journal of Inter- national Law 879-906. 68 Reparation for Injuries Suffered in the Service of the United Nations [1949] ICJ r ep 174, 178. 69 Öberg (n 65) 885. 70 Certain Expenses of the United Nations (Article 17, Paragraph 2, of the Charter) [1962] ICJ r ep 151, 163; confirmed by Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory [2004] ICJ para 26. 71 Cherif bassiouni, ‘International Crimes: Jus Cogens and obligation erga omnes’ (1996) 59(4) Law and Contemporary Problems 63. 72 UNGA r esolution 43/53 (n 2). 02 - Jegede.indd 25 11. 9. 2017 20:19:18 26 DIGNITAS n Pravo človekovih pravic in filozofija prava should have interest in addressing. At any rate, even if such reso- lutions are merely recommendatory, in so far as they deal with duties affecting socio-economic rights, they qualify as soft law, a valid source of international law. 73 In sum, the foregoing analy- sis shows that states’ duties toward socio-economic rights derive from instruments including treaties, decisions and resolutions associated with climate change mitigation actions. It remains to be argued the legal bases for the application of states’ duties on socio-economic rights while implementing climate mitigation ac- tions in Nigeria. 3. Nigeria: The State’s Socio-economic rights Duties in Climate Change Mitigation Context This section argues that duties required of states at the interna- tional level in relation to socio-economic rights in implementing climate change mitigation context apply in Nigeria on two legal bases: duties can give rise to legitimate socio-economic expecta- tion of affected populations in Nigeria; and duties can be comple- mented by existing domestic legislation and policies. 3.1 Legitimate Expectation as a Legal Basis for the Application of Duties The application in Nigeria of international instruments which ground the duties of states to integrate socio-economic rights in climate change mitigation is problematic. Article 12 (1) of the Constitution provides that ‘No treaty between the Federation and any other country shall have the force of law to the extent to which any such treaty has been enacted into law by the National Assembly’. Agreeing with the earlier viewpoint of Nwapi on the application of article 12, 74 the position of enabulele and bazuaye is that the provision requires a prior act of parliament before both a bilateral or multilateral treaty can be enforceable in Nigeria. 75 In another writing on the subject, enabulele contends that a national 73 Hennie Strydom, ‘International Law Making as an Attribute of State Sovereignty’ in Hennie Strydom (ed.), International Law (oxford University Press 2016) 63-100, 94. 74 Chilenye Nwapi, ‘International Treaties in Nigerian and Canadian Courts’ (2011) 19 (1) African Journal of International and Comparative Law 38, 48. 75 Amos enabulele and bright bazuaye, Teachings on Basic Topics in Public International Law (Ambik Press 2014) 94-95. 02 - Jegede.indd 26 11. 9. 2017 20:19:18 27 DIGNITAS n Climate change and socio-economic rights duties in Nigeria measure such as the formulation of policy instead of legislation can satisfy the requirement of article 12, with the caveat that such policy has to be through the decision of the national assembly. 76 So interpreted, it means that except climate change pillar instru- ments relevant to the integration of socio-economic rights in cli- mate change mitigation actions are domesticated, it is impossible for their provisions to assume binding effects on organs of state in Nigeria. Also, at best, the decisions and resolutions affecting socio-economic rights in the context of climate change mitigation actions can only be recommendatory in legal status. Despite the above, it is contended that without their domesti- cation, international instruments relating to climate change miti- gation actions and socio-economic rights, and even if only recom- mendatory, the resolutions by UNHCr and the Commission on climate change and human rights have an applicable legal value in Nigeria. They can translate into a legitimate expectation of popula- tions whose communities host mitigation actions that the govern- ment in Nigeria will implement duties arising at the internation- al level in relation to socio-economic rights and climate change mitigation actions. Traditionally, under the english administrative law, a legitimate expectation arises ‘as a result of a promise, rep- resentation, practice or policy made, adopted or announced by or on behalf of government or a public authority.’ 77 The doctrine has procedural and substantive connotations. The procedural aspect was judicially introduced in Schimdt v Secretary of Home Affairs 78 which recognizes the ‘right, interest, or legitimate expec- tation’ of an individual to be heard in an administrative action affecting his interest, but the substantive aspect of the doctrine clarifies the possibility that an individual can found a claim on an administrative action affecting his interest. 79 For instance, in R v North and East Devon HA ex p Coughlan, the england Court of Appeal affirmed that if an individual had been led to expect one end, the implementation of the policy direction of govern- mental authority cannot point at a different end. It will amount 76 Amos enabulele, ‘Implementation of Treaties in Nigeria and the Status Question: Whither Nigerian Courts’ (2009) 17(2) African Journal of International and Comparative Law 326, 332-333. 77 R v Inland Revenue Commissioners, ex. p. Camacq Corp. [1990] 1 WLr 191. 78 Schmidt v Secretary of State for Home Affairs (1969) 1 All er 904. 79 Paul Craig, ‘Substantive Legitimate expectations in Domestic and Community Law’ (1996) 55(2) Cambridge Law Journal 289. 02 - Jegede.indd 27 11. 9. 2017 20:19:18 28 DIGNITAS n Pravo človekovih pravic in filozofija prava to an abuse of power for such to be allowed. 80 In fact, Cranwell explains that administrative action can extend to treaty obligation, even where such a treaty is not yet domesticated. It is a source of a legitimate expectation that administrative choices of government officials will not negatively affect the rights of people under the given treaty. 81 Contending legitimate expectation as a basis for the application of climate change pillar instruments, decisions and resolutions in Nigeria stems from certain reasons. Without the domestication of climate pillar instruments, the government of Nigeria is official- ly involved in international decision making process on climate change mitigation and implementation of mitigation actions. As part of the African Group of Negotiators on Climate Change, Ni- geria has engaged in the negotiation of climate pillar instruments relevant to mitigation actions. 82 It ratified the UNFCCC in 1994, 83 it is represented at CoP, which as earlier observed, is the highest de - cision making body of the UNFCCC that takes decisions necessary to promote the effective implementation of climate mitigation ac- tions. 84 It acceded in 2004 to the Kyoto Protocol. 85 In response to the obligation under the UNFCCC, Nigeria has submitted its First National Communication in 2003 86 and a Second National Com- munication in February 2014 in which it lists climate change miti- gation as a priority. 87 equally, it is connected with the resolutions both of the UNHr C and the Commission, by virtue of its mem- bership of the United Nations, 88 which established the UNHr C in which it presently serves as a member, 89 and membership of the 80 R v North and East Devon HA ex p Coughlan [2001] Qb 213. 81 Glen Cranwell, ‘Treaties and Australian law - Administrative Discretions, Statutes and the Common Law’ (2001) 1 Queensland University of Technology Law and Justice Journal 49. 82‘ The African Group Negotiators on Climate Change (AGN) meets to discuss the African Position for CoP17 / CMP7’ accessed 19 July 2017. 83I t ratified the Convention on 29 August 1994, see ‘Status of ratification of the Convention’ accessed 19 July 2 017. 84 UNFCCC Conference of parties (n 47). 85 n 81. 86 Federal r epublic of Nigeria ‘Nigeria’s First National Communication under the United Nations Fra- mework Convention on Climate Change’ (Federal Ministry of environment 2003). 87 Federal r epublic of Nigeria ‘Nigeria’s Second National Communication under the United Nations Framework Convention on Climate Change’ (Federal Ministry of environment 2014). 88 Nigeria became a member of United Nations on 7 october 1960, see United Nations ‘Member states’ accessed 19 July 2017. 89 The UNHr C was established by the United Nations General Assembly on 15 March 2006, see UNGA ‘Human rights Council’ A/reS/60/251 (2006); Nigeria membership on this round expires in 2017, see UNHr C ‘Current membership of the Human rights Council, 1 January - 31 December 2016 by 02 - Jegede.indd 28 11. 9. 2017 20:19:18 29 DIGNITAS n Climate change and socio-economic rights duties in Nigeria AU which established the Commission. 90 More importantly, Nigeria is a site of climate mitigation projects as acknowledged in its Intended Nationally Determined Contri- bution (INDC) which affirms that the implementation of mitiga- tion actions will potentially reduce emissions profile, 91 and aims at eliminating gas flaring. 92 The INDC recognises that mitigation actions can empower populations that are socio-economically disadvantaged, 93 while in a document titled the National environ- mental, economic and Development Study for (NeeDS) for Cli - mate Change in Nigeria, it identifies the energy sector as well as the oil sectors as important focus of climate change mitigation. 94 Accordingly, it is involved in climate mitigation actions under the CDM which include the recovery of gas that would have other- wise been flared, 95 effective fuelwood for stoves, 96 use of alterna- tive fuels in cement industry facilities, 97 and hydropower project. 98 outside the CDM regime, it is a site for plantations involving vast amount of land on sugar cane, palm oil and Jethropa which aim at generating biofuels by local and foreign companies in Nigeria. 99 It is participating in reDD+ through its pilot project in Cross river State (CrS). 100 based on the foregoing, it is legitimate for communities hosting projects to expect that a developing state such as Nigeria which participates in the political process and implements projects pre- scribed under international climate pillar instruments should apply provisions and perform the required role of ensuring that year when term expires’ accessed 13 July 2017. 90 It became a member on 25 May 1963, see AU ‘Member States of the AU’ accessed 13 July 2017. 91 Federal r epublic of Nigeria ‘Nigeria’s Intended Nationally Determined Contribution’ (Federal Ministry of environment 2015). 92 ibid 13. 93i bid16. 94 Federal r epublic of Nigeria ‘National environmental, economic and Development Study (NeeDS) for Climate Change in Nigeria’ (Federal Ministry of environment 2010) 18. 95 Project 0553 (n 21); UNFCCC CDM ‘Project 9163: r ecovery and Utilization of Associated Gas from the obodugwa and neighbouring oil fields in Nigeria’ accessed 16 July 2017. 96 UNFCCC CDM ‘Project 2711: efficient Fuel Wood Stoves for Nigeria’ accessed 13 July 2017. 97 UNFCCC CDM ‘Project 8747: Lafarge WAPCo Partial Substitution of Alternative Fuels in Cement Facilities Project in Nigeria’ ac- ac- cessed 13 July 2017. 98 Kainji Hydropower r ehabilitation Project (n 15). 99 n 22. 100 n 23. 02 - Jegede.indd 29 11. 9. 2017 20:19:18 30 DIGNITAS n Pravo človekovih pravic in filozofija prava climate mitigation actions achieve, and not undermine the realisa- tion of socio-economic rights envisaged under such instruments. To argue otherwise is indeed logically and legally inconceivable in view of section 7(c) of the National environmental Standards and r egulations enforcement Agency (establishment) Act (NeSreA). 101 Without drawing distinction between environmental instruments that are domesticated or not, section 7(c) empowers its Agency to enforce compliance with the provisions of international agree- ments, protocols, conventions and treaties on the environment, including climate change, desertification and forestry in Nigeria. Arguably, this provision suggests that the non-domestication of in- ternational instruments on climate change, and the status of other instruments relating to climate change mitigation actions consti- tute no hindrance to their implementation in Nigeria. Nigerian courts have not clarified the application of the doc- trine of legitimate expectation in relation to treaties which are not incorporated as part of the domestic law or content of resolutions and decisions made, as in this case, in relation to climate mitigation actions. However, there is evidence of its recognition in Abacha v Fawehinmi. 102 In that case, while considering the legal status of the African Charter vis a vis the Constitution, the Supreme Court relied on the case of Higgs & Anor v Minister of National Security & Ors, 103 (Higg case) and accepted the position of the Privy Coun- cil that even when not incorporated as part of national law, trea- ties ‘might have an indirect effect upon the construction of stat- utes or might give rise to a legitimate expectation by citizens that the government, in its act affecting them, would observe the terms of the treaty’. This means that citizens can have legitimate expec- tation that a government committed at the international level to the implementation of climate change mitigation actions which require regard for realisation of socio-economic rights will not act contrary at the domestic level. That resolutions and decisions can be used in clarifying such duties is not difficult to imagine. The approach by courts in Ni- geria show that international instruments can be used in inform- ing and clarifying claims even if they have not been domesticat- 101 National environmental Standards and r egulations enforcement Agency (NeSreA) establishment, Act No. 25 (2007). 102 Abacha v Fawehinmi (2000) 6 NWLr (Part 660) 228. 103 Higgs & Anor. v Minister of National Security & Ors (2000) 2 AC 228, PC. 02 - Jegede.indd 30 11. 9. 2017 20:19:18 31 DIGNITAS n Climate change and socio-economic rights duties in Nigeria ed. 104 In Mojekwu & Others v Ejikeme & Others, 105 the Court of Appeal made reference to the Convention on the elimination of Discrimination Against Women (CeDAW), 106 an undomesticat- ed instrument, in support of its finding of violation of women’s rights to non-discrimination. Hence, there is a legal basis for infer- ring legitimate expectation, not only in relation to the application of climate change pillar instruments, but also in decisions and resolutions on the integration of socio-economic rights in climate mitigation actions in Nigeria. In any event, the instruments can be complemented by existing legislation and policies relating to cli- mate mitigation actions and socio-economic rights in Nigeria. 3.2 Domestic Legislation and Policies as basis for the Application of Duties For government to effectively govern, it needs instruments through which it can pursue public purposes and defined ob- jectives. 107 Generally, laws follow and help the actualisation of policies, 108 and both have been identified as some of the types of instruments used by government to govern. 109 both policies and legislation are useful tools in ensuring a government vision of ad- dressing environmental challenges. 110 Unlike legislation, policies are generally non-binding. 111 However, in so far as they clarify duties of government in existing legislation on concrete rights or entitlements they are important tools in the enforcement of rights. 112 This is necessary considering that there is no stand-alone legislation or policy which specifically imposes duties on socio- economic rights in the implementation of climate change mitiga- 104 Durojaye (n 31)161. 105 Mojekwu & Others v Ejikeme & Others (2000) 5 NWLr 402. 106 Convention on the elimination of All Forms of Discrimination against Women (18 December 1979) 13 UNTS 11249. 107 Lester Salamon, ‘The New Governance and the Tools of Public Action: An Introduction’ (2000) 28(5) Fordham Urban Law Journal 1611. 108 Yinka omorogbe, ‘Policy, Law and the Actualisation of the right to Access to energy Services’ in Kim Talus (ed.), Research Handbook on International Energy Law (edward elgar 2014) 361. 109 Nico Steytler, ‘The Legal Instruments to raise Property rates: Policy, by-laws and r esolutions’ (2011) 26(2) Southern African Public Law 484. 110 zarina Patel, ‘Tools and Trade-offs in environmental Decision Making’ in edgar Pieterse and others (eds.), Consolidating Developmental Local Government: Lessons from the South African Experience (UCT Press 2008) 357. 111 oliver Fuo, ‘Constitutional basis for the enforcement of ''executive ''Policies that give effect to So- cio-economic rights in South Africa’ (2013) 16(4) Potchefstroom Electronic Law Journal 1. 112 Marius Pieterse, ‘Legislative and executive translation of the right to have access to health care services’ (2010) 14 Law, Democracy and Development 1, 4. 02 - Jegede.indd 31 11. 9. 2017 20:19:18 32 DIGNITAS n Pravo človekovih pravic in filozofija prava tion actions in Nigeria. 113 This is not unexpected as responding to climate change mitigation requires different strategic approaches backed up with effective legislation and policy. 114 Arguably, there are relevant domestic legislation and policies on climate change mitigation actions which complement international focus on the realisation of socio-economic rights in climate change mitigation context. 3.2.1 Applicable Legislation The key legislation which are relevant to the discussion of cli- mate change mitigation actions in the context of socio-economic rights are the Constitution and African Charter (ratification and enforcement) Act. 115 The Constitution neither guarantees socio- economic rights nor reference climate change mitigation. There are socio-economic aspirations forming part of DPSP which are of relevance to climate change mitigation actions, though. These are sections 17 and 20 of Constitution which commit the state to economic and environmental objectives, the latter including the protection and improvement of the environment, water, air and land, forest and wild life of Nigeria. Nonetheless, the DPSP do not enjoy the legal value equal to creating socio-economic rights in the constitution. The judicial basis for this position in Nigeria is the oft-cited decision of the Appeal Court in Archbishop Anthony Okogie and Others v The Attorney-General of Lagos State which held that no court has ‘jurisdiction to pronounce any decision as to whether any organ of government has acted or is acting in conformity with the Fundamental objectives and Directive Prin - ciples’. 116 on the other hand, domesticated as part of the Nigerian law, the African Charter guarantees the right to equitable and satisfac- tory conditions of work, the right to health, the right to education and the right to culture. 117 It complements these rights with other 113 The bill for an Act to establish the National Climate Change Commission and for other Matters Connected Therewith has been before the National Assembly since 2008, and nothing concrete has emerged up till the time of writing this article, ‘A bill for an Act to establish the National Climate Change Commission and for other Matters Connected Therewith’ < http://nass.gov.ng/document/ download/973> accessed 13 July 2017. 114 NeeDS (n 92) 4. 115 n 29. 116A rchbishop Anthony Olubunmi Okogie & Ors v. the Attorney General of Lagos State (1981)2 NCLr 337; see also Uzoukwu v Ezeonu II (1991) 6 NWLr Part 200. 117 African Charter (n 28) arts 2, 3, 5, 7 & 15-17. 02 - Jegede.indd 32 11. 9. 2017 20:19:18 33 DIGNITAS n Climate change and socio-economic rights duties in Nigeria rights as the right to property, the right to protection of the fam- ily, the right to economic, social and cultural development and the right to a satisfactory environment. 118 Despite the foregoing, the domestication of the African Charter has not pushed the de- bate around the justiciability of socio-economic rights in Nigeria beyond the confines of chapter II of the Constitution and section 6(6)(c). Some authors still argue that the decision of the Supreme Court in Abacha v Fawehinmi indicating that the Constitution is supreme to the African Charter in the hierarchy of domestic laws, 119 appears to foreclose the justiciability of socio-economic rights in Nigeria. 120 Their reasoning is that the constitution leaves no doubt that socio-economic rights are not guaranteed and manifests this intent through section 6(6) (c) which excludes DPSP from judi- cial enforcement. being the supreme law of the land, it then must mean that its provisions trumps the justiciability of socio-eco- nomic rights guaranteed by the African Charter. 121 The argument is strengthened by section 1(1) and (3) of the Constitution which affirms the constitution as the supreme law in Nigeria. 122 other writers acknowledge the non-justiciability of DPSP, but based on the decision of courts in cases such as Attorney General of Ondo State v Attorney General of the Federation, 123 contend that provi- sions of Chapter II of the Constitution can be made justiciable via legislation. 124 If these arguments stand, it means that provisions of the DPSP of significance to the realisation of socio-economic rights in climate change mitigation measure may have other legal use but not justiciability purpose even if complemented with du- ties emanating from international instruments on climate change and human rights. on four grounds, the foregoing position appears untenable. First, the problem is that academic analysis on section 6(6)(c) of the Constitution and justiciability of DPSP often excludes the pro- 118 African Charter (n 28) arts 14, 18, 22 & 24 ; see Alemahu Yeshanew, ‘Approaches to the Justiciability of economic, Social and Cultural rights in the Jurisprudence of the African Commission on Human and Peoples' rights: Progress and Perspectives’ (2011) 11(2) African Human Rights Law Journal 317. 119 n 100. 120 Durojaye (n 31)160; onyemelukwe (n 31) 449. 121 Durojaye (n 31) 161; also see edwin egede, ‘bringing Human rights Home: An examination of Domestication of Human rights Treaties in Nigeria’ (2007) 51(2) Journal of African Law 249, 254. 122 n 119. 123 Attorney General of Ondo State v Attorney General of the Federation (2002) 9 NWLr (Pt. 772) 222; also see case of Bamidele Aturu v Minister of Petroleum Resources and Others Suit No: FHC/AbJ/ CS/591/09 124 n 32. 02 - Jegede.indd 33 11. 9. 2017 20:19:18 34 DIGNITAS n Pravo človekovih pravic in filozofija prava vision of section 13 of the constitution. Section 6(6)(c) provides: the exercise of judicial powers ‘shall not except as otherwise provided by this Constitution, extend to any issue or question as to whether any act of omission by any authority or person or as to whether any law or any judicial decision is in conformity with the Fundamental objectives and Directive Principles of State Policy. However, the use of the word “except as otherwise provided by this Constitution” suggests that the application of that section may be limited by other provisions elsewhere in the Constitution. Arguably the provision of section 13 which mandates all organs of the state including the executive and judiciary to apply DPSP would appear an exception to the application of section 6(6)(c). This connotes that organs of state including the judicial arm can apply DPSP. For instance, by virtue of section 13, it means that the judiciary is not exempted from applying DPSP to matters brought before it or assessing legal issues in the light of DPSP. Therefore, at the very least, the court can be guided by DPSP while entertaining claims based on duties of state in the implementation of climate change mitigation actions. It may be argued that even if section 13 allows organs of gov- ernment to apply DPSP, in so far as the provision falls within the scope of Chapter II which is exempted from judicial power under section 6(6)(c), courts cannot make a judicial pronouncement on DPSP at all, or for that matter, on claims based on the duties of state to ensure socio-economic rights in climate change mitigation actions. However, such an interpretation will amount to limiting the significance of section 13 in terms of the power it confers on organs of governance including the judiciary. For a nation that has subsequently made the African Charter which guarantees socio- economic rights as part of its law, and is committed to mitigation actions, such an argument is logically inconceivable. Secondly, such reasoning will undermine article 27 of the Vi- enna Law of Treaty which recognises that ‘a party may not invoke the provisions of its internal law as justification for its failure to perform a treaty’. 125 In so far as a constitution is an internal legisla- tion, to allow its provisions dealing with non-justiciability of direc- tive principles to trump the justiciability of socio-economic rights under a regional treaty such as the African Charter would appear 125 Vienna Convention (n 46) art 27. 02 - Jegede.indd 34 11. 9. 2017 20:19:18 35 DIGNITAS n Climate change and socio-economic rights duties in Nigeria incompatible with the position of the Vienna Law of Treaty. It will exclude the application of vital instruments that can ensure socio- economic rights in climate mitigation actions. Thirdly, since the Constitution as in the case of Nigeria derives its authority from ‘the people’ which connotes popular sovereignty, 126 it would seem self-conflicting and misconceived to interpret its provisions in a manner that deprives the people of socio-economic rights clearly enshrined in a treaty ratified and domesticated by the State. er- roneously, such an interpretation would signify that ‘the people’ of Nigeria could never have intended to be holders of socio-eco- nomic rights even if guaranteed under a treaty ratified and made part of the national law, or supported by instruments governing climate change mitigation actions in which the State is involved. Lastly, the decision has not yet been made by any court that the combined readings of section 1(1) and (3) and section 6(6)(c) render socio-economic rights provisions of the African Charter unenforceable in Nigeria. rather, aside from the ratification of the African Charter, subsequent approach suggests that it cannot be the intention of courts to hold that socio-economic rights are non- justiciable. In particular, for instance, the Fundamental rights en- forcement Procedure r ules (FrePr) which was adopted in 2009 enjoins courts to ‘expansively and purposely’ apply the provisions of human rights instruments such as the African Charter and the United Nations instruments such as the ICeSCr and its General Comments. 127 The logical inference that can be drawn from the provision is that the FrePr supports the application of the rel - evant provisions of these instruments in so far as they deal with climate change mitigation actions. 3.2.2 Applicable Policies Policies related to climate change mitigation actions which create socio-economic entitlements can be found in the 2014 Na- tional Communications on climate change. 128 In the main, these 126 1999 Constitution (n 26) preamble; a similar expression ‘we the people’ is in the preamble of the constitution of United States interpreted in some writings as connoting popular sovereignty, see Andrew Kilbera, ‘We the People: The original Meaning of Popular Sovereignty’ (2014) 100 Virginia Law Review 1061. 127F undamental rights enforcement Procedures r ules (2009) issued pursuant to s 46(3) of the Nige- 46(3) of the Nige- rian Constitution (FrePr) (1999) para 3(b). 128 Second National Communication (n 85) 02 - Jegede.indd 35 11. 9. 2017 20:19:18 36 DIGNITAS n Pravo človekovih pravic in filozofija prava include the National Policy on the environment, 129 National ener- gy Policy, 130 National Water Policy, 131 Nigerian bio-Fuel Policy and Incentives, 132 Nigeria Vision 2020, 133 and the National Strategic Ac- tion Plan on the Great Green Wall for the Sahara and Sahel Initia- tive (GGWSAP). 134 In addition to their relevance to climate change mitigation actions, that they delineate role for state in delivering socio-eco- nomic benefits is a strong indication that existing policies offer the legal basis for the State to ensure that climate mitigation ac- tions achieve the realisation of key socio-economic rights. exist- ing policies speak to the role of the State to promote alternative sources of energy, 135 conservation of the environment for the for present and future generation, 136 and touch on socio-economic rights in that they emphasise the aims of improving the health of peoples, 137 socio-economic conditions, 138 in particular, housing, 139 food security, 140 and water, 141 education, 142 and promotion of job creation. 143 In particular, the strategic goal of the GGWSAP is to foster low-carbon, high growth economic development through the implementation of mitigation actions. 14 4 The National energy Policy indicates the intention of the state to improve the living standards of people in oil producing communities through the provision of socio-economic infrastructure, 145 and develop poten- tial sites for hydropower, gas and coal-fired power plants for elec- tricity generation. 146 The Nigerian bio-Fuel Policy and Incentives 129 Federal r epublic of Nigeria, National Policy on environment, Act 42 1988. 130 Federal r epublic of Nigeria, National energy Policy 2003. 131 Federal r epublic of Nigeria, National Water Policy 2004. 132 Federal r epublic of Nigeria, Nigerian bio-Fuel Policy and Incentives 2007. 133 Federal r epublic of Nigeria, Nigeria Vision 20: 2020 Abridged Version 2010. 134 Federal r epublic of Nigeria ‘Great Green Wall for the Sahara and Sahel Initiative National Strategic Action Plan’ (GGWSAP) (2012) 10. 135 National Policy on environment (n 127) para 4(9)(k); GGWSAP (n 132) section 2(b); National energy Policy (n 128) 37; Nigerian bio-Fuel Policy and Incentives (n 130) 22. 136G GWSAP (n 132) section 2(b); Nigeria Vision 20: 2020 Abridged Version (n 131) 21. 137N ational Policy on the environment (n 127) para 4(16); GGWSAP (n 132) para 2(a); National energy Policy (n 128) 45; Nigeria Vision 20: 2020 Abridged Version (n 131) 9 138 National Policy on the environment (n 127) para 4(16)(d); Nigeria Vision 20: 2020 Abridged Versi- on (n 131) 12, 20-21; National Water Policy (n 129) 14. 139 GGWSAP (n 132) section 2(a); Nigeria Vision 20: 2020 Abridged Version (n 131) 9. 140N igeria Vision 20: 2020 Abridged Version (n 131) 9; GGWSAP (n 132) 9-10. 141 National Water Policy (n 129); Nigeria Vision 20: 2020 Abridged Version (n 131) 9 142 Nigeria Vision 20: 2020 Abridged Version (n 131) 9 143 Nigerian bio-Fuel Policy and Incentives (n 130) 5, 7; GGWSAP (n 132)10; Kainji Hydropower r e- habilitation Project (n 15) 3 144 GGWSAP (n 132) v. 145 National energy Policy (n 128)12, 36 146 ibid 37. 02 - Jegede.indd 36 11. 9. 2017 20:19:19 37 DIGNITAS n Climate change and socio-economic rights duties in Nigeria requires the Federal Government to provide infrastructure in- cluding roads, electricity and power supply and facilities to com- munities where bio-fuel companies operate and support State and Local Governments for infrastructure requirements of areas identified for bio-fuel operations. 147 The overall objective of the National Forestry Policy is to achieve sustainable forest manage- ment, leading to sustainable increases in the economic, social and environmental benefits from forests and trees, for present and future generations, including the poor and vulnerable groups. 148 The policy specifically seeks to support schemes that facilitate ac- cess to carbon markets, 149 and encourage forest-dependent peo- ple, farmers and local communities to advance their livelihoods through novel methods to forestry. 15 0 It aims at assisting the poor in adapting to the impacts of climate change and benefiting from evolving carbon markets, through tree cultivation of forests. 151 It also provides that the aim of the policy is to guarantee tree owner- ship rights within the enabling laws and traditional practices and customs. 15 2 While generally, policies are not legally-binding as they only reveal and advance actions of the executive in relation to their subject matter, the above policies can strengthen and be strength- ened by states’ duties toward socio-economic rights in climate change mitigation actions as envisaged at the international level. For instance, in so far as they deal with climate change mitigation actions and socio-economic objectives, the policies are a reflec- tion of the State’s endorsement of international instruments on climate change mitigation actions calling for the observance of socio-economic rights in the implementation of actions. Also, for implementation purpose, these policies and their socio-econom- ic content fall within the scope of the application of section 7(a) of NeSreA which empowers the agency to enforce their compli - ance. Section 7(c) of NeSreA also provides for enforcement of international agreements and treaties on issues including climate change. This suggests that dissatisfied populations can have the option with NeSreA to require the application or enforcement of 147 Nigerian bio-Fuel Policy and Incentives (n 130) 22. 148 National Forestry Policy1988 section 3(i) 149 ibid section 3(10(ii) 150 ibid section 3(1)(v) 151 ibid sections 3(3), (10)(2)(vi) 152 ibid section 3(2) and(27) 02 - Jegede.indd 37 11. 9. 2017 20:19:19 38 DIGNITAS n Pravo človekovih pravic in filozofija prava compliance in line with policies as supported by international in- struments relevant to climate change mitigation. Where NeSreA fails to perform the required task, section 1(2)(c) allows the agen- cy to sue and be sued provided that requisite notice is given, 15 3 a provision which offers a window to bring the government into terms with its obligations to ensure that climate change mitigation actions enhance and not undermine socio-economic rights duties in Nigeria. 4. Conclusion Climate change pillar instruments and other instruments relat- ing to climate change and human rights at the international level, as discussed, provide for the implementation of climate change mitigation actions such as alternative energy usage, the recovery of gas that would have otherwise been flared, biofuels initiatives under the CDM and forest based reDD+. The implementation of these actions which involves different actors including developing states can aid the realisation of socio-economic rights. However, climate change instruments have not been articulated to demon- strate states’ socio-economic rights’ duties in climate change miti- gation actions. Applying such duties in Nigeria, a site for mitiga- tion actions, can be problematic considering the legal challenges, namely, the non-domestication of climate change pillar instru- ments and uncertainty as to the justiciability of socio-economic rights. The article demonstrated that climate pillar instruments and other instruments such as decisions and resolutions relating to cli- mate change and human rights at the international level are a legal source of duty to respect, protect and fulfil socio-economic rights while implementing climate change mitigation actions. While dis- cussing the legal bases for the application of duties in Nigeria, the article argued that these instruments have applicable legal value, despite the lack of domestication of treaty based instruments and the recommendatory nature of instruments such as resolutions and decisions dealing with climate change and human rights. It contended that instruments can translate into a legitimate expec- tation that the State will implement socio-economic rights’ duties 153 NeSreA (n 99) section 32(1). 02 - Jegede.indd 38 11. 9. 2017 20:19:19 39 DIGNITAS n Climate change and socio-economic rights duties in Nigeria arising from international instruments. The contention was based on the grounds of the involvement of government in the inter- national decision making process on climate change mitigation and implementation of mitigation actions, despite non-domesti- cation of applicable instruments and the recommendatory nature of resolution and decisions. The article further demonstrated that despite the arguments against the justiciability of socio-econom- ic rights, there are legislation and policies with applicable provi- sions that can strengthen and be strengthened by international instruments in ensuring the application of socio-economic rights duties while implementing climate change mitigation actions in Nigeria. BiBLiogrAPhy Books and articles Akinola Akintayo, A Good Thing from Nazareth? 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