With some 44 percent of its population under the age of 15, the adage that ‘children are the future’ rings more true in Africa than anywhere else. The protection of children’s rights is not only an investment in the future, but also an imperative of the present, which is characterized by children’s exploitation as solder’s, laborers, and sex-workers, and in human trafficking; the neglect of orphans, especially due to AIDS deaths; the prevalence of street children; early marriages and other harmful cultural practices; and the disproportionate impact of conflict on children (UNICEF, ‘State of the world’s Children 2006: Excluded and Invisible’) what these challenges show us- the level of vulnerability and special difficulties facing children. To fight these, the UN has adopted various resolutions (the 1959 Declaration on the Rights of the Child) and an important binding instrument-Convention on the Rights of the Child of 1989. These are the instruments globally addressing the rights of Children. So what is the need of having regional (OAU/AU) child rights instruments?

 

The OAU/AU Child Rights Protection System

Children’s rights first featured on the OAU’s agenda in 1979, the UN-declared International Year of the Child, when the Assembly adopted the Declaration on the Rights and Welfare of the African Child. Although not legally binding, this Declaration provided a moral compass for later legal reforms. Among other measures, the Declaration urged states to adopt, ‘legal and educational measures’ to abolish cultural practices that are harmful to children, such as early marriage and female circumcision. In 1987 nearly a decade after the adoption of the Declaration, the works and initiatives for creating binding child rights instruments in the African context were began. Conferences involving African NGOs, UNICEF and African lawyers were conducted in 1988.

A working group of African experts set up by OAU, prepared a draft Charter which formed the basis of eventual African Children’s Charter. This was ultimately adopted as African Charter on the Rights and welfare of Children on 11 July 1990 and entered into force on 29 November 1999, almost a decade later. F. Viljoen identifies two reasons for the adoption of this document: Political and legal reasons. On a political level, the OAU reacted against a perception of exclusion or marginalization of African States in the drafting process of the CRC. Their involvement was initially limited. From political point of view, there was a need to adopt a regional human rights instrument dealing with the issue of particular interest and importance to children in Africa. It was contended that in the CRC as a global instrument and the product of numerous compromises, regional specificities were victimized in the process of universal consensus-seeking.

Thus, some of the omissions’ from the CRC and those not sufficiently addressed, identified by those involved in the drafting process of ACRWC, are the following: the situation of children living under apartheid, factors disadvantaging the female child, practices prevalent in African society such as FGM and circumcision, socio-economic conditions such as illiteracy and low level of sanitary conditions, the African conception of the Community’s responsibilities and duties, child soldiers and minimum age for military services, and the role of family in the upbringing of the child and in matters of adoption and fostering.

All these concerns were at least partly addressed by the ACRWC. Compared to the CRC, the African Children’s Charter (ACC) raises the level of children’s protections in three important respects. First, while the CRC allows child soldiers to be recruited and to be used in direct hostilities (CRC- Art. 38(2) (3)), the ACC completely outlaws the use of child solders (Art. 22(2)). Secondly, in terms of CRC, child marriage is allowed, because Article 1 stipulates that child means every human being below the age of 18 years unless majority is acquired at an earlier age. The ACC is explicit in its prohibition of child marriages (Art. 21(2)); in fact, it adds that the legislation must be adopted to specify the age of marriage to be 18 years. Thirdly, in its protection of child refugees, the ACC extends its ambit to internally displace children (IDC) (Art. 23(4)), something CRC does not do (Art. 22). The causes for internal displacement are also all-inclusive.

Therefore, it can be concluded that the ACC has fulfilled the objective of supplementing the CRC with regional specificities.

Another feature of ACC is that it deviates from CRC by placing duties or responsibilities on children (Article 31). This aspect may be identified as one of the African feature of ACC like that of the main Charter (ACHPR). This approach was taken by some as giving legal effect to the subordinate role of children within the strict age-based hierarchy of traditional African societies. However, it is expected that these duties will be interpreted in light of the whole charter’s provisions and that of international human rights laws (Art 46). Such other counterbalancing provisions of the ACC are the right to free expression and protection of privacy as well as parental duty to ensure the best interest of the child. Moreover, the inclusion of duties into ACRWC also emphasizes the relational character of children’s rights which is, to some extent, enjoyed in reliance on adult support and guidance. Thus, it remains for the monitoring Committee to clarity further the scope of the children’s duty-provision.

One of the prominent features of the main African Charter, peoples rights such as self-determination (Art. 20), is not reflected in the ACRWC. This could be possible because it is not appropriate to specifically entitle children to most collective rights or if the need arises children can invoke/claim rights under the main Charter as part of the phrase ‘every individual’ & ‘Peoples’ (whatever its meaning).

The ACRW enumerates a number of civil, political, economic, social and cultural rights in a holistic way. While most rights are recognized and guaranteed as in the general human rights instruments and that of CRC, there are some provisions uniquely designed to African reality. These include provisions on enjoyment of parental care and protection (Art. 19), protection against harmful social and cultural practices (Art. 21), rights during times of armed conflict which provide greater protection than the UNCRC (Art. 22); and rights of refugees (Art. 23). There are specific provisions in the Charter for ‘handicapped children’ (Art. 13) and those of imprisoned mothers (Art. 30).

Recently on 2 July, 2006, African Union has adopted another instrument partly dealing with children. This is known as African Youth Charter (AYC). With 15 minimum requirements, but so far with 11 ratifications, AYC has not yet entered into force. The content of the Charter addresses many matters of African youth in the political, economic, social and cultural scenarios. Do you think having such separate human rights instruments is necessary?

The African Charter broke new grounds by enacting duties in a more elaborated and meaningful fashion than any other binding human rights instrument. The duty provisions of the African Charter aimed at the individual are found in articles 27 to 29. According to Article 27:

Every individual shall have towards his family and society, the state and other legally recognized communities and the international community.

The rights and freedoms of each individual shall be exercised with due regard to the rights of others, collective security, morality and common interest.

Article 28 states that: “every individual shall have the duty to respect and consider his fellow beings without discrimination, and to maintain relations aimed at promoting, safeguarding and reinforcing mutual respect and tolerance.”

Article 29 provides that the individual shall have the duty:

to preserve the harmonious development of the family and to work for the cohesion and respect of the family; to respect his parents at all times, to maintain them in case of need;

To serve his national community by placing his physical and intellectual abilities at its service;

Not to compromise the security of the state whose national or resident he is;

To preserve and strengthen social and national solidarity, particularly when the latter is threatened;

To preserve and strengthen the national independence and the territorial integrity of his country and to contribute to its defence in accordance with the law;

To work to the best of his abilities and competence, and to pay taxes imposed by law in the interest of the society;

To preserve and strengthen positive African cultural values in his relations with other members of the society, in the spirit of tolerance, dialogue and consultation and, in general, to contribute to the promotion of the moral well-beings of society;

To contribute to the best of his abilities, at all times and at all levels, to the promotion and achievement of African unity.

The duty posture of the African Charter as enumerated above has been subjected to criticism. The critics are concerned with that it would be a basis for state parties to the African Charter to perpetrate human rights violations. This view is driven by the gross and persistent violations of human rights in post-colonial African states and the fear that vesting states with more power can only result in more abuses. To dismiss these criticisms in the face of present day African realities would not be proper. It will only amount to a denial of a potently genuine fear. On the other hand, however, the inclusion of duties in the Charter will not per se be an automatic avenue for states to engage indiscriminate human rights violation. The duties in the Charter, which the individual is charged to observe are not of the nature that could be tied to a particular right, which a state would in turn use as a retaliatory tool. The notion of duties in the Charter is rather another unique dimension of the African Charter in entrenching positive African cultural and traditional values which existed in pre-colonial Africa, and which complement the notion of rights. If viewed from this angle, critics of the language of duties in the Charter may be persuaded to do a deeper study of the implications of the duties.

The duty-rights conception of the African Charter could provide a new basis for individual identification with compatriots, the community, and the state. It could forge and instill a national consciousness and acts as a glue to reunite individuals and different nations within the modern state, and at the same time set the proper limits of conduct by state officials. The duties enshrined in the Charter could be read as intended to recreate the bonds of the pre-colonial era among individuals and between individuals and states.

Looking at the Charter provisions on duties, one would see that they are meaningful for the smooth working of society. Article 27(1) merely restates the fact that the individual owes a duty to his family, the state, other legally recognized communities and the international community. Article 27 (2) places a limitation on the exercise of rights by an individual for the protection of the rights of others, and in the interest of collective security, morality and the interest of others. This is a normal fact of life, which reflects the practical reality that no right is absolute. Individuals are asked to reflect on how the exercise of their rights in certain circumstances might adversely affect the rights of other individuals or the community at large. The duty is based on the presumption that the full development of individual rights is only possible where individuals care about how their actions would impact others. Article 27(2) thus raises the level of care owed to neighbors and the community. The same philosophy is embedded in Article 28. The duty of every person to respect and consider his or her fellow beings without discrimination, and to maintain relations aimed at promoting, safeguarding and reinforcing mutual respect and tolerance, is noting but a lubricant that oils the wheel of social interaction.

The duties set out in Article 29 stress responsibilities to the family, community and the state. There is nothing wrong for an individual to be reminded that he or she ought to respect his or her parents and to provide them with necessary care and maintenance. This is positive African cultural value, which has been codified for posterity. It is the joy of the African parent to toil and train his or her child, with a great expectation that when that child becomes “somebody” that child would take care of him or her. In the same vein, a person ought to serve his or her community with his or her intellectual and physical capabilities. That is the essence of community service, and it has been a long standing practice in the African past.

The same thing could be said of the duties not to compromise the security of the state, to strengthen social and national solidarity, especially when national solidarity is threatened, and the duty to preserve, strengthen and defend the national independence and territorial integrity of a person’s country. This group of duties reminds Africans of the need to preserve their hard-won independence. The duties represent an extension of the principle of self-determination in the external sense, as a shield against foreign domination. The maintenance of social and national solidarity for example, is of utmost importance in present day Africa where many modern states have collapsed or failed. The duty to pay tax is the civic responsibility of every citizen of any country, where the principle of taxation is recognized. The duties to promote positive African culture and African unity are emphases of societal cohesion.

We must also observe that the notation of duty is not just one that is directed against the individual. The Charter prescribes duties to states in addition to the general obligations that apply to them. The state is under a duty to assist the family (Article 18 (2). Article 25 imposes a duty on states to promote and ensure through teaching, education, publication, the respect of the rights and freedoms contained in the Charter and to see that these freedoms and rights as well as corresponding obligation and duties are understood. Similarly, Article 26 creates a duty for states to guarantee the independence of the courts. The difference between the duties of individuals under the Charter and those of states is that, while those of the individuals cannot ordinarily be used to proceed against them under the regional mechanism, those of states amount also to obligation within the charter, over which they can be challenged.

The notion of duties under the African Charter, while not totally without concern as to possible misuse by the political class, whether in military uniform or civilian garb, needs to be evaluated in a different light. It is noting but an embodiment of the positive dimension of African cultural philosophy, which the Charter tries to codify for the benefit of posterity. Any thinking to the contrary by the ruling class must be resisted.

Claw-Back Clauses under the African Charter

The phrase “claw-back clauses” has been used to generally refer to those provisions of the African Charter that tend to limit some of the rights guaranteed under the Charter. They do not qualify as outright derogation clauses that are found in other international human rights instruments. They rather qualify the enjoyment of the right as contingent upon other notions of state prescription. For example, Article 8 grants the freedom of conscience, profession and free practice of religion, “subject to law and order”. Under Article 10, an individual has the right to free association “provided that he abides by the law”. Similarly freedom of movement of an individual is guaranteed by Article 12 “provided he abides by the law”.  Citizens have the right to participate freely in their governments “in accordance with the provision of the law.” Article 14 provides for the right to property, but that property may be encroached upon “in accordance with the provision of appropriate law”.

These clauses have been criticized, based on the fact that states are traditionally the most frequent violators of human rights. They also have the power to create and change laws. By inserting clauses that permit rights to be limited by the law, the Charter makes human rights especially vulnerable to the very institution which attacks them most often. The criticism goes further to assert that claw-back clauses in the Charter go further than derogation clauses in that they permit a state, in its almost unbounded discretion, to restrict its treaty obligation or the rights guaranteed by the Charter. Though derogation clauses, on the other hand, permit suspension of treaty obligations, such suspension is temporary, while that based on claw-back clauses may be permanent. In the same vein, derogations can only be invoked in cases of emergency, unlike claw-back clauses which may be applied in normal circumstances, so long as a national law is passed to that effect. Gittleman opines that while derogation clauses warrant the suspension of only certain obligation and rights, rather than all rights, claw-back clauses have no limit.

One will agree with the observation that the effect of claw-back clauses as expressed in the African Charter is that it seriously emasculates the effectiveness of the Charter as well as its uniform application by Member States. This is because instead of the Charter having primacy, the various national laws of Member States actually assume a primary place. The effectiveness of the Charter will thus be reduced, since it would appear to be subject to national standards as laid down by domestic law. Such domestic laws could be laws that are made to validate acts of violation deliberately embarked upon by Member States. Various Africa governments are known for the use of retroactive legislation to achieve their dictatorial tendencies, and will thus find the claw-back clauses a veritable source of inspiration. One must agree that claw-back clauses in the Charter, if not properly construed, will frustrate the enjoyment of some of the rights guaranteed in the Charter. This is because, permitting national law to limit, with a superseding effect, provision of the Charter, means that the Charter itself permits the perpetration of violations of rights enshrined in it. In other words, the Charter gives rights, but permits them to be taken away, thus not protecting the individuals it is meant to protect.

The Commission needs to make a categorical statement, either by way of a resolution or a finding in the course of its adjudicatory function, on the purport of the claw-back clauses scattered all over various articles of the Charter. The common phrases “subject to law”, “in accordance with the law”, etc used in claw-back clauses, need interpretation.

KIWANUKA, RN (1988) 82 American Journal of international Law 80

… Human rights vs Peoples’

The full title of the Banjul Charter raises the controversial question of the difference and relationship between (individual) human rights and (collective) peoples’ rights. The relationship between the two must clearly be appreciated to avoid compromising either. In this connection, Roland Rich’s three-premise approach could be a particularly helpful starting point:

1) The individual remains the primary subject of international human rights law.

2) International human rights law recognizes the existence of groups.

3) The enjoyment of individual human rights requires certain human right to devolve directly upon groups.

The first is now generally accepted and does not require detailed examination. The individual is the cardinal subject of international human rights law. The second premise is rapidly becoming a well-settled principle, as international human rights law has already extended recognition to groups of persons as such. These include minorities, colonized peoples and indigenous populations. It is the third that requires a closer look, for it is the raison d’etre of collective rights.

Karel Vasak referred to collective rights, similar to those covered in the Banjul Charter, as belonging to the third generation of human rights and termed them ‘solidarity rights’. According to him, rights under this umbrella:

Seek to infuse the human dimension into areas where it has all too often been missing, having been left to the state or states … [T]hey are new in that they may both be invoked against the state and demanded of it; but above all … they can be realized only through the concerted efforts of all the actors on the social scene: the individual, the state, public and private bodies and the international community.

Here we can detect elements of peoples’ sovereignty, not only in the political, but in the economic sphere as well. In addition, and perhaps more importantly, Vasak emphasized the need for concerted action in the effort to deliver certain rights-hence the solidarity tag.

The basic question, however, remains: Are collective rights human rights or not? Part of the problem lies in the terminology itself. This evident, for example, in the following comment:

Can human rights, as opposed to obligations, be vested in states? ... [T]here is no precedent in international law for the vesting of human rights in states. Human rights are vested in the individual. Certain collective rights derive from those individual rights, especially from the right to freedom of association. But does that mean that these rights extend to states or Governments?

On the surface, it appears logical to state that a human right can only be enjoyed by a human being. Louis Sohn perhaps would respond to this observation by reminding us that because collective rights are always ultimately destined for individual, they are ipso facto human rights:

One of the main characteristics of humanity is that human beings are social creatures. Consequently, most individual belong to various units, groups, and communities; they are simultaneously members of such units as a family, religious community, social club, trade union, professional association, racial group, people, nation, and state. It is not surprising, therefore, that international law not  only recognizes inalienable rights of individuals, but also recognizes certain collective rights that are exercised jointly by individuals grouped into larger communities, including peoples and nations. These rights are still human rights; the effective exercise of collective rights is a precondition to the exercise of other rights, political or economic or both. If a community is not free, most of its members are also deprived of many important rights.

The drafters of the 1966 international human Rights covenants adopted a similar position. That was why they included the collective right to self-determination in the covenants and gave it pride of place. This strong endorsement, however, did not convince detractors of collective rights. Therefore, I suggest that collective rights be regarded as sui generis. They are not individual, but collective; they belong to groups, communities or peoples. When the group secures the rights in question, then the benefits redound to its individual constituents and are distributed as individual human rights. This concept can be illustrated by taking professor Sohn’s example of the club further: in an interclub tennis tournament, only clubs have the right to participate even though individuals actually play the game. Members as skilled as Navratilova or Lendl would not have an automatic right to play in tournaments. Contestants are entered by their clubs in accordance with the internal arrangements of those clubs.  The individual’s right to play can only be expressed in and through the club. This right is actualized, first, by protecting the club’s rights in the wider setting; and then by the individual rights in the club. International and individual rights are no different.

Consequently, the Banjul Charter, by separating peoples’ from human rights, does not obfuscate but progressively develops international human rights Law. It shows, in clear terms, that there is a conceptual difference between collective (peoples’) rights and individual (human) rights.

Furthermore, the Charter approaches the two categories in a balanced manner; it does not give the impression of favoring one category over the other. The fact that individual rights are not as well secured as one would have wished, is due not to a preference for collective rights but to the political realities of the continents and the OAU. Governments were not yet ready in 1981 to have their affairs completely opened to international scrutiny. Moreover, a close examination of the Charter reveals that, in most of the cases, peoples’ rights (as opposed to state rights) do not fare much better than individual rights. However, in its own way, the Banjul character at least theoretically recognizes that all classes of rights (political, economic, individual and collective) are equal and synergetic.

…

The meaning of ‘people’

The definition of ‘peoples’ has primarily been approached in the context of the right to self-determination, where it has been used to indicate an ethnic community or a community that identifies itself as such because of common interests. Yoram Dinstein, writing with Middle Easter problems in mind, identified subjective and objective quantities of term:

The objective element is that there has to exist an ethnic group linked by common history …

… It is not enough to have an ethnic link in the sense of past genealogy and history. It is essential to have a present ethos or state of mind. A people is both entitled and required to identify it self as such.

Ian Brownlie expanded on that definition but laid more emphasis on identity:

No doubt there has been continuing doubt over the definition of what is a ‘people’ for the purpose of applying the principle of self-determination. Nonetheless, the principle appears to have a core of reasonable certainty. This core consists in the right of a community which has a distinct character to have this character reflected in the institutions of government under which it lives. The concept of distinct character depends on a number of criteria which it lives. The concept of distinct character depends on a number of criteria which may appear in combination. Race (or nationality) is one of more important of the relevant criteria, but the concept of race can only be expressed scientifically in terms of more specific features, in which matters of culture, Language, religious and group Psychology predominate.

…

In a report written for the United Nations, Aureliu Cristescu offered a limited definition of the term ‘people’ for the purposes of the right to self-determination. He preceded it by explaining that the United Nations had proceeded cautiously, albeit firmly, in the struggle against colonialism and it would not be possible to produce a definition covering all possible situations. From the specific situations already witnessed, he believed the following elements had emerged:

a) The term ‘people’ denotes a social entity possessing a clear identity and its own characteristics;

b) It implies a relationship with a territory, even if the people in question has been wrongfully expelled from it and artificially replaced by another population;

c) A people should not be confused with ethnic, religious or linguistic minorities, whose existence and rights are recognized in article 27 of the International Covenant on Civil and Political Rights.

Among these three writers, the main attributes of peoplehood are presented, namely commonality of interests, group identity, distinctiveness and a territorial link. It is clear, there fore, that ‘people’ could refer to a group of persons within a specific geographical entity.

…

Both these references are common, but that does not make their use unambiguous. Christescu’s exclusion of minorities depended on certain assumptions that, as we shall soon see, are no longer tenable.

‘people’ as possessors of the right to political self-determination

Under article 20 of the Banjul Charter, the right to self-determination is guaranteed to all peoples. However, paragraph 2 of article 20 singles out colonized and oppressed peoples as the possessors of that right. This is the least problematic of the uses of ‘people’. Under current international Law, as evidenced, for example, by the practice of the United Nations, the Organization of African Unity and individual states, political self-determination is generally equated with freedom from colonial-type rule. It does not extend to insistence by one sector of the population of an independent (or majority – ruled) state on its own form of self- determination, culminating, perhaps, in secession.

Following this line of reasoning, Eisuke Suzuki suggested that, in reality, there are only three remaining opportunities for the exercise of this right in Africa: The dismantling of minority rule in South Africa, the achievement of independence for Namibia and the resolution of the problem of the Western Sahara. International Law has chosen to deny such groups as the Eritreans the right (privilege?) of designating their struggle as one for the attainment of the right to self-determination.

…

International Law already treats the right to self –determination as tied to a specific geographically defined territory. Further subdivision would not be consistent with that position. Moreover, a people wishing to go its separate way would have to renounce the authority of the liberation movement representing it.

…

From the foregoing, we can conclude that the first meaning of ‘people’ is all the different communities (peoples), in fact, all persons within the boundaries of a country or geographical entity that has yet to achieve independence or majority rule. Once independence (or majority rule) is achieved, no further independence is permissible. The rights of the different peoples would thereafter be protected as minority rights.

Before leaving this point, I should observe that the rule against secession as an exercise of the right to self-determination is only a general one. Although it is backed by a solid body of UN, AU and state practice, it can still admit a few exceptions. The independence of Bangladesh was one. Ved Nanda, in a definitive article on the subject, demonstrated the existence of a set of circumstances that combined to lend a clock of legitimacy to what would otherwise have been impermissible in international Law. These were the physical separation of East from West Pakistan and the total domination of the former by the latter; the nature of their ethnic and cultural differences; the disparity in their economic growth to the disadvantage of East Pakistan; the electoral mandate to secede; the brutal suppression of dissent in East Pakistan and the viability of both regions as separate entities. The fact that the United Nations was presented with a fait accompli was also significant.

Although many of the secession claims in various parts of Africa have been characterized some of the elements of the Bengali struggle, few have come close to matching it. For example: The secessionist activities in Katanga and Biafra were roundly condemned by the United Nations and the OAU as threats to sovereignty and territorial integrity. The conflict in Eritrea has practically been shoved into a closet despite Eritrea’s illegal absorption into the Ethiopia Empire in 1962. Finally, the unilateral declaration of independence by the Saharan Arab Democratic Republic (SADR), as well as its subsequent admission into the OAU in 1982, was not an exercise in secession. Moroccan and Mauritanian claims to the territory of Western Sahara had been rejected by the International Court of Justice.

…

Peoples as the different minorities

One of these problems was to work out an acceptable definition of who constituted a minority. Several definitions were essayed with varying degrees of success. The most satisfactory and acceptable was the one proffered by Francesco Capotorti in a report commissioned by the UN Sub-Commission on prevention of discrimination and protection of Minorities. He suggested that:

A minority is a group numerically inferior to the reset of the population of a state, in a non-dominant position whose members – being nationals of the state-possess ethnic, religious or linguistic characteristics differing from those of the rest of the population and show, if only implicitly, a sense of solidarity, directed towards preserving their culture, traditions, religion or Language.

The pertinent question, for present purpose, is whether or not a minority, thus defined, can be referred to as a ‘people’ entitled to enjoy the peoples rights contained in the Banjul Charter. If we do not confine ourselves within the straitjacket of assuming that peoplehood and the right to self-determination automatically lead to independent statehood, it is not difficult to appreciate that, indeed, a minority can fulfill all the requirements of a ‘peoples’. As Felix Ermacora correctly argued:

Unless the United Nations has not developed clear-cut ideas about the holder of the right to self-determination my opinion is that minorities also can be considered as people. They must live also in a territory or they must have been living in a territory which is now occupied; they must have cultural or religious characteristics; they must be politically organized that so that they can be represented; and they must be capable of an economic independence. It does not depend on governments as to how they are describing an entity as a people; it depends on objective and subjective criteria of a group. It depends also on the self-consciousness of identify. I think therefore, that national and racial, perhaps also religious, minorities could be considered peoples in the sense of an autonomous concept of the United Nations instruments. For them self-determination is inalienable.

It must be emphasized that total independence is not the exclusive form in which the right to self-determination is realizable. What is important is that the right of the group and its members receive recognition and protection.

Since secession is generally impermissible in current international law, all references to political self-determination, in relation to independent states, should mean respect for minority rights. By the injunction of article 19 that ‘[n]othing shall justify the domination of a people by another’, the Banjul Charter proscribes external and internal forms of colonialism. Minorities are entitled not to lose their identity and interests in the aggression-of the whole

The right to existence in Article 20 addresses the problem of genocide perhaps the single worst threat to minorities. In other cases involving self-determination, a people within a state should be sufficiently protected by respect for both its minority rights (for example language, culture, religion) and the human rights of its members. That this protection may break down and that minorities everywhere, especially in the Third World, are constantly in fear of repression are actualities that cannot be assured an unequivocal collective solution by international Law. Such violations are regarded as violations of individual and minority rights and treated accordingly. The International Covenant on Civil and Political Rights of 1966 adopted a similar approach. In addition to individual rights and liberties, it made room for the protection of minority rights in article 27.

Where minority and individual rights arte respected, there will not be many motives for secession. The concept of ‘people’, in this sense, is designed to achieve that objective.

…

In sum, the apparently progressive introduction of the concept of ‘peoples’ into the Benjul Charter could actually turn out to be counterproductive in some respects, that is, where the rights and interests of the people are not respected by the state. In such situations, peoples’ rights might initially be treated as state rights and then degenerate into sectarian, class, government, regime and clique rights. In the extreme, they could become certain individuals’ rights. This ultimate perversion has already come to pass in many Africa countries, such as Zaire, where the incumbents have unfettered control over the disposal of natural resources and state wealth. In situations of despotic misrule, one of the first casualties is usually the economy, as the governors embark on orgies of personal enrichment. The outrageous exploits of such dictators as Amin, Bokassa and Nguema are Legendary. Indeed, politics in Africa and the developing world generally, sometimes seems like a business venture.

…

There is no necessary contradiction between the third meanings noted above, which equates ‘people’ with the state, as long as the state acts for the benefit of all the people, and professor Cassese’s view, which underlines the need for democracy in the economic realm. This third meaning refers to the external application of the right to economic self-determination. The state would control the commanding heights of the economy so as to minimize leakage and benefit the people, that is, all the peoples. Under present circumstances, however, to achieve this goal, it is imperative that the state sall be controlled by the people in the democratic sense. This is the message of the Algiers Declaration. It deals seriously with the relationship between peoples and their state in a way the Banjul Charter does not. This omission needs urgent correction otherwise the whole basis of peoples’ rights in the economic sense will hang in doubt.

…

The Banjul Charter provides for a set of individual rights and liberties, which should complement and reinforce the right of peoples. However, the timorous approach to the protection of individual rights (or, indeed, any rights claimable against a state party) does not offer much hope for this meaning of peoples to be significantly asserted.

Provide the Commission is allowed to function effectively; it could redeem some of the grounds apparently conceded to states and governments. It will be in the interest of all African countries and their peoples for popular democracy to be given a chance. The lofty ideals of the peopls’ rights in the Banjul Charter-such as peace and development depend, in a large measure, on respect for individual. Peoples’ rights can not be a substitute for individual human rights.

One unique aspect of the African Charter is its inclusion of group, collective or peoples’ rights as distinct rights in addition to civil and political rights and economic, social and cultural rights. The notion of peoples’ rights seems controversial, and raises a number of questions in the minds of international human rights scholars. Such questions include: what point is Africa trying to make? What is the definition of “people”? Does it mean that the rights of the individual have become subordinated to peoples’ rights?

In trying to answer the questions above in the context of African human rights concept, some African scholars have canvassed African traditional way of living in which communal relationship is emphasized. According to one view, “living in Africa means abandoning the right to be an individual, particular, competitive, selfish, aggressive, conquering being . . . in order to be with others, in peace and harmony with the living and dead, with the natural environmental and the spirits that people it or give life to it.” The predominant sentiment apparent in the above statement is that in Africa, the individual is totally taken over by the archetype of the totem, the common ancestor or the protective genius, and merges into the group. There is no doubt that the diverse cultures of Africa significantly identify group influence over the individual. The statement of the African Charter, however, goes further than this group identity. By providing for group rights, the Charter does not subordinate individual rights to group rights, neither does it remove the individual from being the subject of the human rights concept. What the Charter tries to do is to establish a link between the inalienable rights of the human person and of peoples in a contextual manner.

The contextual approach to human rights raises the issue of safeguarding, promoting and preserving universal rights and human values in societies with different political, social and cultural backgrounds. It touches upon the question of recognizing the very identity of diverse cultures, civilizations and peoples with due respect for fundamental and universal values of humanity. Similarly, the following preambular paragraph of the African Charter reinforces the relationship between peoples’ rights and human rights: “Recognizing, on the one hand, that fundamental human rights stem from the attributes of human beings, which justifies their national and international protection, and on the other hand, that the reality and respect of peoples’ rights should necessarily guarantee human rights.” Second, peoples’ or groups rights are not in conflict or in competition with human rights, as they are complementary concepts.

Some aspects of the notion of collective rights enshrined in the African Charter are strongly amplified by the U.N. Declaration on the Right to Development. Such endorsement of the principle of collective rights is indicative of their importance rather than their destructive tendencies. While it may be true that recent experiences and actual practices in different parts of the world have revealed what happens when a misconceived concept is misinterpreted and vehemently enforced, the concept of collective rights cannot be said to be fraught with such dangers as apartheid, or such others concepts that degrade the status of the human person. Van Boven rightly points out that the principle of the right to development, for example, is a notion of peoples’ right that is not destructive of individual human rights, but one that places peoples’ rights and human rights in mutual relationship as complementary concepts.

One does not contend the fact that there is no generally accepted definition of people, neither does the African Charter offer one. However, there is consensus among jurists that some working characteristics of “peoples” have emerged from studies made under the auspices of UNESCO. Such characteristics, among others, include:

1. An enjoyment by a group of individuals of some or all the following common features:

(i) Common historical tradition;

(ii) Ethnic group identity;

(iii) Cultural homogeneity;

(iv) Linguistic unity;

(v)  Religious or ideological affinity;

(vi) Territorial connection;

(viii) Common economic life.

2. The group on a whole must have the will to be identified as a people or the consciousness of being a people.

By choosing to create legal obligations out of peoples’ rights, the point that Africa is trying to make is that, just like other leading instruments, such as the American Declaration of Independence, the French Declaration of the Rights of Man and of the Citizen, the Universal Declaration of Human Rights, the African Charter is more than a legal instrument. It is also an instrument of liberation; and embodies human aspirations and goals, reflecting constitutive elements of justice. According to van Boven, this is more so, because the struggles for human rights and peoples rights are not only settled in the courts, but also and perhaps more decisively in political fora. Thus, instruments on human rights and peoples rights may function in an extra-legal dimension as a guarantee and as mechanisms to defend freedom. Particularly in the third world, they also serve as tools of the liberation for the deprived, the oppressed, the have-nots and victims of discrimination.

Peoples’ rights under the Charter span from Article 19 to 24. Article 19 guarantees the equality of all peoples and prohibits the domination of a people by another. Article 20 provides for the right of all peoples to self-determination. Article 21 guarantees the right of all peoples to freely dispose of their wealth and natural resources and to exercise several related rights. Article 22 deals with the right to development, while Article 23 deals with national and international peace and security. Finally article 24 guarantees the rights of all peoples to a satisfactory environment favorable to their development.  Though the scope of each rights and the beneficiaries under each categories of the rights are broad and some times debatable, we will briefly discuss the basic feature of some of them.

• The Right of Self-determination

The right of self determination is conceptually provided for in Article 19 of the Charter, while specifically enumerated in Article 20. Article 19 provides that “All peoples shall be equal; they shall enjoy the same respect and shall have the same rights. Nothing shall justify the domination of a people by another.”

Article 20 reads as follows:

All peoples shall have the right to existence. They shall have the unquestionable and inalienable right to self-determination. They shall freely determine their political status and shall pursue their economic and social; development according to the policy they have freely chosen.

Colonized or oppressed peoples shall have the right to free themselves from the bonds of domination of resorting to any means recognized by the international community.

All peoples shall have the right to the assistance of the State Parties to the present Charter in their liberation struggle against foreign domination, be it political, economic or cultural.

The above Charter provision on the right of self-determination underscores the colonial experience and domination of Africa with a view of eliminating all vestiges of colonialism. The fact, however, that the Charter is a document enacted in post-independent Africa leaves one to wonder on the perceived application of the concept in the future. While Article 20 (2) and (3) reinforce opposition to all forms of colonialism, Articles 19 and 20 (1) are general guarantees against domination of any kind of peoples. Article 20 (2) not only emancipates colonized people, but also “oppressed peoples.” As has been rightly observed, the above provisions have left commentators wondering whether the principle of self-determination of “peoples” would apply to groups within sovereign African States who may wish to secede as was the experience in Biafra, Western Sahara, Katanga and Eritrea.

The African struggle for decolonization was essentially a struggle for the right of self- determination of African people to freely determine their political status and freely pursue their economic, social and cultural development. With the attainment of de jure independence of African States the quest for self-determination became reinforced as experiences in the above cited examples have shown. African States have individually, and under the auspices of the OAU, taken the position that self-determination does not apply outside the colonial context, because such post-colonial application of the concept will undermine African unity. The International Court of Justice (ICJ) in a case between Burkina Faso and Mali has endorsed this theory of African unity as a basis for not applying the principle of self-determination to groups within post-colonial Africa. The ICJ stated that

“the maintenance of the territorial status quo in Africa is often seen as the wisest course, to preserve what has been achieved by the peoples who have struggled for their independence, and to avoid a disruption which would deprive the continent of the gains achieved by much sacrifice.”

There is no disputing the fact that African unity is indispensable to African development and would be the preferred option of all well meaning Africans. However, events all over African have shown that the domination experienced during colonialism, on basis of which Africa fought for independence, still pervades the continent. Eritrea, Rwanda, Western Sahara, Katanga, Anglophone Cameroon and post-Biafra domination in Nigeria are glaring examples. Some of these cases have shown that there are certain exigent circumstances where the principle of self-determination should be allowed to apply rather than a preference for the human carnage that went on (and still goes on) in most of these examples.

The African Commission is yet to find its bearing on the challenges posed by several of these collective rights. The Commission’s position on the right of self-determination is not different from the views expressed by African States on the issue. The first test case on self-determination that came before the Commission was Katangese peoples’ Congress v. Zaire. In that case, the people of Katanga submitted a communication under the auspices of Katangese Peoples’ Congress in 1992 requesting the African Commission to recognize the Katangese Peoples’ Congress as a liberation movement entitled to support in the achievement of independence for Katanga; recognize the independence of Katanga; and help secure the expulsion of Zaire from Katanga. The complaint alleged that the history of the Katangese people showed that its territory is separate from Zaire. The communication, therefore, called on the Commission to find that the people of Katanga were entitled to an independent and separate State.

In its deliberations on the communication, the African Commission identified Article 20 (1) of the African Charter as the applicable provision, as there were no allegations of specific breaches of other human rights. The Commission agreed that all peoples have a right to self-determination, but that there may be a controversy as to the definition of the peoples and the content of the right. The Commission identified that the issue in the case was not self-determination for all Zaireans as a people but specifically for the Katangese, but that whether the Katangese consisted of one or more ethnic groups was, for that purpose immaterial, and that no evidence to that effect had been adduced.

The Commission agreed that self-determination may be exercised in a number of ways, such as independence, self-government, federalism, confederalism, unitarism or any other from of relations that accords with the wishes of the people, but that it must be fully cognizant of other recognized principles, such as sovereignty and territorial integrity. The Commission vehemently maintained that it was obliged to uphold the sovereignty and territorial integrity of Zaire as a member of the OAU and a party to the African Charter. It ruled that in the absence of a concrete evidence of violations of human rights to the point that the territorial integrity of Zaire should be called into question, and in the absence of evidence that the people of Katanga were denied the right to participate in government as guaranteed by Article 13 (1) of the African Charter, Katanga was obliged to exercise a variant of self-determination that is compatible with the sovereignty and territorial integrity of Zaire. For the above reasons, the Commission declared that the case held no evidence of violations of any rights under the African Charter; and that the request for independence, therefore, had no merit under the African Charter on Human and Peoples Rights.

It is clearly evident from this case that the African Commission does not intend to interpret the right of self-determination as long as there is the right to participate in the government of one’s country under Article 13 (1) of the Charter. Any other claim would appear to a majority of members of the Commission to be a threat to the territorial and sovereign integrity of an African State.

In view of the above decision, scholars may continue to wonder without end, the actual purport of Article 20 of the Charter. Interpreting the Article to apply only to foreign domination is contradictory of the clear language of the Article. The second and third paragraphs of the Article specifically identify colonized peoples, and to that extent could be said to apply to foreign domination. Paragraph 2 on the other hand, does not only identify colonized people, but also oppressed people. Oppressed people could well be within sovereign African states. In addition, paragraph 1 applies to all peoples, without specific reference to colonized people or foreign domination. In this regard, there is growing consensus that the right of self- determination is not limited to freedom from colonial domination, but extends also to contemporary post-colonial realities.

Be the above as it may, one would agree that there is a need for cautious application of the absolute principle of self-determination in view of the territorial and sovereignty issues at stake. Rather than dismiss every claim of the right to self-determination, the implementing machinery of the African system should adopt strict standards on the right, which would ensure that frivolous claims are not allowed to demean its procedure. The African Human Rights Commission ought to be open-minded enough to consider genuine complaints by genuinely oppressed groups within sovereign African states.

• Right over Wealth and Natural Resources (Art.21)

Article 21 provides:

All peoples shall freely dispose of their wealth and natural resources. This right shall be exercised in the exclusive interest of the people. In no case shall a people be deprived of it.

In case of spoliation the dispossessed people shall have the right to the lawful recovery of its property as well as an adequate compensation.

The free disposal of wealth and natural resources shall be exercised without prejudice to the obligation of promoting international economic cooperation based on mutual respect, equitable exchange and the principles of international law.

States Parties to the present Charter shall individually and collectively exercise the right to free disposal of their wealth and natural resources with a view to strengthening African unity and solidarity.

States Parties to the present Charter shall undertake to eliminate all forms of foreign economic exploitation, particularly that practiced by international monopolies, so as to enable their peoples to fully benefit from the advantages derived from national resources.

The right over wealth and natural resources is a component right of self-determination, and has been so regarded since the adoption of the UN Resolution on Permanent Sovereignty Over Natural Resources. One could say that the drafters of the African Charter were inspired by the above resolution. In the 1952 resolution, the General Assembly recognized “that the under-developed countries have the right to determine freely the use of their natural resources . . . in order to be in a better position to further the realization of their plans of economic development in accordance with their national interests . . . .” This principle was one of the early marks of decolonization. During this period, developing countries asserted sovereignty over their natural resources during their struggle for political self-determination and economic development. They argued that sovereignty over natural resources was an essential prerequisite for economic independence and development, and therefore a cardinal component of State sovereignty. Today, the principle has become established as “a fundamental principle of contemporary international law.

A close reading of Article 21 of the Charter reveals that “peoples” and States are guaranteed this right to their wealth and natural resources. While it is the right of all peoples freely to use, exploit, and dispose of their natural wealth and resources, states have the right to exercise control over their natural wealth and resources, and in such a way that will eliminate the excesses of multinational corporations. This interpretation brings back the argument already made in the previous discussion on the right of self determination as to whether “peoples” here could be extended to groups within sovereign African States. It has been observed that the doctrine of permanent sovereignty arose in the context of relations between host States and transnational enterprises engaged in the exploitation of natural resources. As a result, the right of the State to legislate for the public good with respect to the natural resources and economic activities in its territory has become the most common construction given to the doctrine of permanent sovereignty.

The African Commission is yet to decide a case that borders directly on article 21 of the Charter. Some of the cases dealing with violation of personal freedom may have arisen from circumstances that could be construed as having their root in that provision. It is hoped that, when the commission or other adjudicative body gets the opportunity, it will take into consideration the reality of the times. The process of economic reforms that will follow in African countries in the millennium will definitely lead to legal reforms that ought to take into consideration the notion of the rights of people (groups within sovereign states) to enjoy the wealth and natural resources on their land, subject to reasonable state control. To be considered also, is the role of multinational corporations in state violation of human rights based on the exploitation of natural resources and similar activities.

• The Right to Economic, Social and Cultural Development (Art.22)

Article 22 of the African charter provides that:

1.all peoples shall have the right to their economic, social and cultural development with due regard to their freedom and identity and in the equal enjoyment of the common heritage of mankind; and 2. State shall have duty, individually and collectively, to ensure the exercise of the right to development.

The right to development has acquired the status of an internationally recognized right since the early eighties. The right has grown as a branch of international law. Keba M’Baye, the first president of the Supreme Court of Senegal and a judge of the International Court of Justice, is credited with first formulating the right to development as a human right in the early seventies during the 1972 Strasbourg Inaugural Lecture in which he elaborated upon the economic, legal, moral and political justifications for the existence of the right to development. The emerging recognition of the right was confirmed by the United Nations General Assembly Declaration on the Right to Development in 1986. This Declaration followed the adoption of the right to development by the general assembly as a human right in 1979.

As is normal in international law, the right to development has been a controversial subject, provoking lengthy debates as to its existence. For proponents of the right like M’Baye, there can be no human rights without development and vice versa. It is further argued that there is higher propensity to violate human rights in underdeveloped countries than in developed ones, thus drawing a correlation between positive protection of human rights to a higher level of economic development. In the other side of the coin, the argument is that the right to development is a mere expression of sentiments devoid of any legal validity.

The right to development has already come to stay as a human right, and therefore has to be developed, albeit progressively, to serve the general purpose of development. Generally, the right to development consists of the right of individuals to benefit from a development policy based on material and non material needs and to participate in the development policy. It also involves the collective right of a developing country to the establishment of a new international order. The general interpretation to be given to this dimensional approach is that in the end, the human being is viewed as the subject and not the object of the development process. On a practical level, there is a natural translation of the right to development into the right of communities, especially those of indigenous peoples, to develop their culture and maintain possession of their land and cultural resources in the face of economic development policies that threaten their extinction.

There is no doubt that the concept is quite controversial and its precise definition extremely complex. However, it is clear that the notion of solidarity, or international cooperation and shared responsibility for the welfare and prosperity of all, is the central basis for the realization of this new right. To this end, the Charter implies a progressive obligation of member states to ensure that while individual freedom is emphasized, economic, social and cultural development will be promoted.

The African commission has not had a chance to decide any petition on the right to development.

• The Right to Peace (Art.23)

On the right to peace, article 23 of the Charter states:

1. All peoples shall have the right to national and international peace and security. The principles of solidarity and friendly relations implicitly affirmed by the Charter of the United Nations and reaffirmed by that of the Organization of Africa Unity shall govern relations between states.

2. For the purpose of strengthening peace, solidarity and friendly relations, states parties to the present Charter shall ensure that:

(a) Any individual enjoying the right of asylum under Article 12 of the present Charter shall not engage in subversive activities against the country of origin or any other state party to the present Charter.

(b) Their territories shall not be used as bases for subversive or terrorist activities against the people of any other state party to the present charter.

Article 23 (1) restates the principle of the preservation of international peace and security, as well as the principle of friendly relations among states, which the UN Charter provides for as some of its main objectives, and which also forms a basic foundation of the OAU.  Apart from the restatement of the principle of international peace and security, the paragraph also makes it the rights of all peoples. Similarly Article 23 (2) prescribes two specific ways by which states parties would ensure peace and strengthen solidarity and friendly relations.

The question of peace as a human right, into which some obligations can also be read, is entirely novel, and began with the African Charter. Generally, the law of peace is part of the classical subdivision of the subject matter of international law. Thus, the principle of peaceful coexistence, peaceful change, and prohibition of coexistence, peaceful change, and prohibition of coercion – all find expression in a variety of national and international legal instruments. Apart from the provisions of Article 1 of the UN Charter, the right to peace has been the subject of debates and study by the UN Commission on Human Rights. These debaters culminated in UN General Assembly Resolution, which reaffirmed the right of individuals, states and all mankind to a life in peace.

According to Alston, despite the significant of the above instrument on the right to peace, the elements of the right have never been determined, and that, no effort has yet been undertaken to elevate the term beyond the level of generalities, or to allow it to develop into practical usefulness. While this observation may be correct, in terms of the practical realization of the right to peace, we must recognize the efforts at the UN level to define and develop the content and elements of the right. For practical purposes, however, it is difficult to see how Article 23 (1) of the African Charter can be properly articulated in terms of enforcing the right of all peoples to national and international peace and security. It is true that in Africa, peace and security have become increasingly of grave concern. The Charter does not contain enough contents to aid the enforcement of the right. The two situations in which states are obliged to ensure the achievement of peace, solidarity and friendly relations are not adequate. They limit the whole question of peace to ensuring that an asylee does not engage in subversive activities against his or her own country, or any other state party to the Charter; and provide a prohibition of the use of the territory of a Member State for subversive or terrorists activities. While these are inherent in the whole agenda of peace, they serve the notion of state sovereignty and non-intervention in the internal affairs of a member state of the OAU, which has been a long standing principle of the regional body, but which has stood in the way of human rights enforcement.

The African commission has not yet had a chance to consider a communication based on Article 23 of the Charter. The Commission has, however, adopted a number of resolutions on situation in Africa that threatened peace and security in various Member States and the continent at large. By the nature of Article 23, it would appear that states are in a better position to enforce a violation of the right than individuals, through the inter-state communications procedure.

The principle that the right to peace, and the right to live in peace, entail more than the obligation of states not to engage in aggressive war, is already firmly established international law. There are other possible extensions of the right to peace which involve related rights, duties and obligations, many of which are already implied in existing rights and guarantees. For example, the right of all peoples to participate in the decisions of their government regarding war and peace is implicit in recognized rights of political participation. Furthermore, the right of conscientious objection is already contained in the guarantee of freedom of thought and conscience.

The Right to Environment (Art.24)

Article 24 of the Charter provides that

all peoples shall have the right to a general satisfactory environment favorable to their development.

The first international large scale formulation of concern for the environment in a right- related posture was at Stockholm in 1972. Since then several efforts have been made to achieve international recognition for a clean and healthy environment. After more than two decades, the Stockholm conference was followed by the Rio Declaration. At the time of the Stockholm Declaration, environmental action was understood to be principally a matter of preventing pollution; and in developing countries was seen as a luxury to be afforded only after industrialization. As environmental issues became increasingly stressed, several national constitutions began to incorporate the right to the environment.

The concept of a healthy environmental is therefore, not new. However, the link between a healthy environment and human rights is a recent development. It has been observed that the suggestion to link human rights and the environment was made by Rene Cassin, who opined that human rights protection should be extended to include “the right to a healthful and decent environment, that is, freedom from pollution, and the corresponding right to pure air and water.” It was, however, the African Charter that gave the right to a healthy environment its international codification in a human rights instrument.

What exactly does the right to a general satisfactory environment as formulated in Article 24 of the African Charter mean? Ankuma has criticized the provision as vague, and thus subject to divergent interpretations. She, however, notes that the broad formulation of states’ obligations leaves room for flexibility, in such a way that it may be possible for states to adhere to their human rights obligations in accordance with their particular situation. There is no doubt that the manner in which the right to environment is formulated in the African Charter does not guarantee a definite interpretation in terms of the contents of the right. This may, however, be a blessing in disguise, if any interpretation to be given to the right takes cognizance of the realities of the situation in accordance with prevailing international law principles. In addition, the right to environment by nature cuts across civil and political rights and economic, social and cultural rights. It is said to have the characteristics of civil and political rights in so far as it requires states to refrain from activities that are harmful to environment, while on the other hand, it has a feature of economic, social and cultural rights in that it requires states to adopt measures to promote conservation and improvement of the environment. In all, the right to environment has different dimensions. The individual dimension is the right of any victim or potential victim of an environmentally damaging activity to obtain reparation for harm suffered, while the collective dimension involves the duty of the state to assist in cooperating internationally to resolve environmental problems.

The Africa Commission has not yet been given the opportunity to deal with Article 24 of the Charter as no complaints have been submitted, which allege the violation of satisfactory environment per se, neither has the commission taken any independent initiative to promote the right. Despite the lack of action on this right at the Commission, it is increasingly becoming important and relevant to Africa, especially after the toxic waste dumping of 1988 in some African countries by international corporations. After the discovery of the toxic waste dumps, the OAU took quick action to forestall future occurrences. The same year the OAU Council of Ministers passed a resolution condemning the export of toxic wastes to Africa, and emphasizing that it is a crime against Africa. This resolution was followed by an OAU Convention banning the importation of toxic waste into Africa. In addition, the African Economic Community Treaty concluded in Abuja, Nigeria on 3 June 1998 requires states parties to improve the environment and take steps against the dumping of toxic wastes.

It follows, therefore, that in interpreting the obligations enshrined in Article 24 of the African Charter, the primary responsibility lies with states parties to adopt measures that will effectively address environmental degradation. The right of the individual against the state is contingent upon the existence or otherwise of these measures, and where a demand for such measures results not in assistance but in the violation of other fundamental human rights of the individual. Individuals, in addition, should have the right in domestic law of private action against a direct violator of his or her right to a healthy environment.