Symposium on Climate (Im)Mobility and the African Court’s Climate Advisory Opinion: Beyond Displacement – Recognising the Right to Stay in a Changing Climate

[Beatrice Njeri is a human rights lawyer, an Advocate of the High Court of Kenya and Regional Litigator for Africa at the Global Strategic Litigation Council.

Bella Mosselmans is the Director of the Global Strategic Litigation Council and a human rights lawyer. She is co-initiator of the Climate Mobility Case Database, a former Kennedy Memorial Trust Scholar at Harvard Law School (LLM Class of 2022), and Forbes 30 under 30 for Impact (2020). 

Harj Narulla is a barrister and leading global expert on climate law and litigation at Doughty Street Chambers and the University of Oxford.

Nikhita Mani is a Legal Fellow at the Global Strategic Litigation Council. She recently completed a dual LLB./J.D. degree at University College London and Columbia Law School and was awarded the Parker Certificate of Achievement in International and Comparative Law.]

Introduction

Climate change drives displacement but also leads to voluntary or involuntary immobility. Across Africa, people stay in climate-affected areas due to a lack of capacity to move or due to strong ties to the land. Climate change itself impedes the ability of vulnerable individuals to move by reducing the resources needed to migrate. International law offers protections to people displaced due to climate change but has, thus far, paid less attention to those who choose or are forced to stay. In its ongoing advisory proceedings on climate change, the African Court on Human and Peoples’ Rights (“ACtHPR”) has an opportunity to address this gap and recognise the right to stay as a distinct right grounded in existing human rights guarantees. 

The Foundations of a Right to Stay 

The right to stay has not yet been explicitly recognised as an autonomous right under an international legal instrument. Nevertheless, instruments addressing internal displacement have begun to conceptualise a related right not to be displaced. The UN Guiding Principles on Internal Displacement were the first international framework specifically addressing the rights and protection of internally displaced persons (IDPs). The Principles define IDPs as including those displaced in the context of natural or human-made disasters. Importantly, the Principles articulate the right not to be displaced through both preventive obligations and protection against displacement. Principle 5 provides that all authorities and international actors, including States, must prevent and avoid conditions that could lead to displacement by respecting, and ensuring respect for, their international law obligations. Principle 6 establishes the right of every individual “to be protected against being arbitrarily displaced from his or her home or place of habitual residence,” including displacement in the context of disasters. Although the Principles are not binding, they restate obligations that already exist under international human rights and humanitarian law. 

The Kampala Convention is the first legally binding regional instrument specifically addressing internal displacement. The Convention emphasises the obligations of African Union States Parties to prevent displacement, protect individuals during displacement, and facilitate durable solutions. The Convention links displacement to “natural disasters” explicitly in its preamble and in its definition in Article 1(k) of an IDP. Under the Convention, States undertake to refrain from, prevent, avoid and prohibit arbitrary displacement. Importantly, Article 4(4) provides that “all persons have a right to be protected against arbitrary displacement.” States are also required, under Article 4(1), to respect their obligations under international human rights and humanitarian law to prevent and avoid conditions that might lead to displacement. The Convention therefore provides a strong, binding framework for protection against arbitrary displacement. Its practical reach, however, may be constrained by its judicial enforcement architecture. Under the inter-State dispute mechanism of Article 22(1), only States, not individuals, can bring a dispute concerning the interpretation/application of the Convention before the prospective African Court of Justice and Human Rights. Scholars have noted that the territorial nature of internal displacement makes it unlikely that States will bring proceedings against one another regarding displacement outside their territory.

Nevertheless, for individuals, the right to stay can be grounded in existing human rights guarantees. Most directly, it can be inferred from the right to freedom of movement and residence, which is well established across international and regional human rights law, including under Article 13 of the Universal Declaration of Human Rights and Article 12(1) of the International Covenant on Civil and Political Rights. The Human Rights Committee, in its General Comment No. 27, has interpreted Article 12(1) as encompassing “protection against all forms of forced internal displacement.” The same understanding is reflected in the soft-law IASC Operational Guidelines on the Protection of Persons in Situations of Natural Disasters, which interpret freedom of movement as including “the right to freely decide whether to remain in or to leave an endangered zone.” Regionally, Article 12(1) of the African Charter guarantees freedom of movement and residence. The African Commission of Human and Peoples’ Rights (“Commission”), has interpreted Article 12(1) of the Charter as closely connected to the right to liberty (Article 6), recognising that restrictions on freedom of movement, including being forcibly displaced and unable to return, can amount to a deprivation of liberty (COHRE v. Sudan, para 177). 

Several other rights underpin the right to stay. This is because the right to stay can only be meaningfully exercised where the place of residence remains habitable. Safeguarding the right to stay therefore requires protecting the conditions and guarantees necessary for a dignified life. This brings the right to stay into the realm of States’ positive obligations, including their obligations to address the effects of climate change. The right to a satisfactory environment (Article 24 of the Charter), is particularly central to guaranteeing the conditions necessary for people to stay on their lands because of its close relationship with the enjoyment of other rights. Climate-related events can destroy homes or render them uninhabitable, deplete natural resources, and undermine access to clean water, sanitation, food, and other essential services, violating the rights to life, health, housing and property. Where such harms result in displacement, they also interfere with freedom of movement, while severing communities’ connections to ancestral lands, cultural sites, family networks, natural resources and traditional livelihoods. Taken together, this creates conditions incompatible with dignity. These harms have been recognised by the Inter-American Court of Human Rights (IACtHR) in its own climate advisory opinion (paras 403, 416-419, 449). In that opinion, the IACtHR acknowledged that protecting fundamental rights is essential to preventing climate-related forced mobility and displacement, requiring OAS States to adopt measures, in line with enhanced due diligence, to prevent such displacement (paras 422-423). In Ogoni, the Commission recognised that environmental degradation interferes with a range of economic and social rights. It held that Article 24, read with Article 16 (right to health), imposes both negative and positive obligations: States must refrain from conduct that causes environmental harm, while also taking reasonable and effective measures to prevent pollution and ecological degradation, including through environmental monitoring and oversight, impact assessments, and ensuring access to information and meaningful participation (paras 52–53). 

The right to stay can therefore be understood through existing Charter guarantees. The ACtHPR’s advisory proceedings provide an opportunity to take this reasoning further by recognising it as a distinct implied right under the Charter. The practice of the Commission demonstrates that the Charter’s protections can extend to rights not expressly articulated in its text (see Ogoni, paras 60-61; Pretoria Declaration, para. 10), an approach that has had no pushback from Member States. The ACtHPR could therefore recognise, as an implied right arising from Articles 12(1) and 24 of the Charter, a right of individuals and peoples to stay in their homes and on their lands. This requires States to protect against arbitrary displacement and to take reasonable and effective measures to preserve the conditions necessary for them to remain there safely and with dignity, subject to lawful and necessary evacuation where remaining would expose them to a serious and imminent threat to life or health. 

It should be noted that the right to stay protects both voluntary and involuntary immobility, although the nature of the protection differs. Where people wish to remain, it protects their agency to do so, including through protection against arbitrary displacement and, where necessary, through positive measures ensuring continued residence is safe and dignified. People who remain because they lack the ability to leave are no less entitled to these protections. Their involuntary immobility should not itself be understood as an exercise of the right to stay: the freedom to remain necessarily coexists with the freedom to leave, requiring States to also remove barriers to mobility and assist those who wish to move. 

Why the Right to Stay Matters 

Recognising a right to stay is important for clarifying the legal protection available to those facing displacement, and also for shaping how the international community understands, prevents and responds to displacement in the context of climate change. We briefly set out below three reasons why the ACtHPR should take the opportunity presented by its advisory proceedings on climate change to recognise the right. 

First, recognising the right fills a gap that existing frameworks are only able to address indirectly through invoking other established rights. Recognising the right to stay as a distinct right with its own legal significance would provide a clearer basis for defining the substance of the right through the corresponding duties it imposes on States: to respect, fulfil, promote and protect it (Ogoni, para 44). This could require States to (i) respect the right by refraining from forcibly evicting/relocating communities, or from creating conditions that force people to move; (ii) fulfil it by taking positive measures to enable people to remain safely, including through in-situ climate adaptation and mitigation, (iii) promote it by ensuring access to information and meaningful participation in decisions such as relocation, and (iv) protect it by regulating private actors whose activities threaten communities with displacement. 

Second, promoting the right to stay may shape how climate adaptation is conceived and inform more inclusive and rights-based adaptation policies. Understanding the factors that shape (im)mobility is essential to ensuring that people and communities who remain are not rendered invisible in climate responses. Where individuals or communities wish to remain, adaptation measures should consider what is necessary to make continued residence possible and safe. This may require appropriate investment in infrastructure, essential services, and broader policies that address the drivers of displacement and reduce vulnerability. This is especially important as governments are increasingly using managed or planned relocations as part of their climate adaptation strategies, despite evidence that outcomes from such policies can be “maladaptive”, exacerbating people’s vulnerabilities and impacting their livelihoods. For example, planned resettlement of farming communities from Mozambique’s Lower Zambezi valley ignored traditional methods of managing flooding cycles. Farmers relied on floodwaters for fertile soils and fish, while cultivating plots across different agro-ecological zones and using portable homes that could be moved to higher ground during flooding season. Resettlement disrupted access to land, agricultural practices and social networks, causing psychological and cultural harm. Some families abandoned resettlement areas, returning to low-lying areas or travelling long distances to continue cultivating their crops. The adoption of a right to stay could allow communities to resist unwanted relocation and encourage the implementation of policies that improve habitability and mitigate climate change rather than imposing relocation. 

Finally, the right to stay is important for collective and Indigenous rights, where remaining in a particular place may be essential to a people’s cultural/spiritual practices, identity and livelihoods. This is particularly significant in the African context, where communal and customary land tenure remains widespread and communities depend directly on the land and ecosystems for their physical and economic security. Environmental harm and displacement may therefore threaten not only individual livelihoods, but the survival of the community itself (see Ogoni, para 67). The African Charter is distinctive in expressly recognising the rights of “peoples” in Articles 19-24. This collective rights framework makes the African system well-suited to addressing climate change, which produces harms that are widespread and threaten entire communities. The right to stay could be recognised as belonging to both individuals and peoples, consistent with the ACtHPR’s approach to property rights. This has implications for remedies: in Ogiek (Reparations), the ACtHPR recognised that the communal nature of the violations required communal rather than individual remedies (para 76). It therefore awarded monetary compensation and measures of restitution collectively (paras 77, 112-117), and ordered the establishment of a community development fund for projects benefiting the community as a whole (paras 151-156). 

Conclusion

The right to stay is grounded in existing human rights protections and responds to a gap in current approaches to climate mobility. The ACtHPR has an opportunity to recognise this right in the context of climate change and clarify the corresponding obligations on States. Although not binding, the Advisory Opinion could carry significant authority, shaping national laws, informing future litigation and strengthening protections for communities across Africa.

Photo attribution: Photo by Damian Patkowski on Unsplash