Symposium on Climate (Im)Mobility and the African Court’s Climate Advisory Opinion: Climate Displacement and Protection from Refoulement – A Defining Moment for the African Court

[Cleo Hansen-Lohrey is a Lecturer in Law at the University of Tasmania whose research focuses on African regional refugee law and climate-related displacement. 

Tamara Wood is a Senior Lecturer in Law at La Trobe University and Visiting Fellow at the Kaldor Centre for International Refugee Law, UNSW Sydney.]

Climate Displacement and the Request for an Advisory Opinion

In May 2025, the African Court received a landmark request from the Pan African Lawyers Union for an advisory opinion on the human rights obligations of African States in responding to the climate crisis. As the impacts of climate change increasingly contribute to the displacement of people from their homes, the advisory proceedings offer the continent a pivotal opportunity to again lead the way in protecting forced migrants. Building on Africa’s uniquely progressive refugee and human rights law frameworks, the African Court could deliver what similar opinions by the International Court of Justice (‘ICJ’) and the Inter-American Court of Human Rights (‘IACtHR’) did not: clearly articulated guidance for States on their international protection obligations in the context of climate change. This includes the obligation not to remove (refoule) persons displaced across borders in situations involving climate-related hazards and events. 

While the principle of non-refoulement will not apply to every person forced to move in the context of climate change, it will apply to some. For those who qualify, it is a critical lifeline and a safeguard against persecution and other forms of serious harm. It is crucial, therefore, that those charged with identifying and protecting such persons have clarity on when, and how, the relevant legal frameworks apply, including in the context of climate change.

The need for clarity is all the more pressing in Africa, given it is home to some of the world’s most climate-vulnerable communities. In the Sahel Region, temperatures are increasing 1.5 times faster than the global average and an estimated 65% of arable land has been degraded, causing catastrophic consequences for a region heavily dependent on rainfed agriculture. Combined with armed conflict and food insecurity, the result is one of the world’s worst humanitarian crises, with significant forced displacement recorded in Niger, Nigeria, and Chad. In the East and Horn of Africa, increasing climate-related impacts are leading to increases in disaster-related displacement. For example, sustained flooding and rising lake water levels in Kenya have generated some of the highest internal displacement figures on record in the country. 

Despite these challenges, Africa remains the only region in the world with a binding, standalone legal framework for the protection of refugees – the 1969 OAU Refugee Convention. The OAU Refugee Convention applies alongside the 1951 Refugee Convention, which also applies where the climate impacts generate or exacerbate a risk of persecution on a Convention ground. But it is the distinctive nature of the OAU Refugee Convention, together with the African Charter on Human and Peoples’ Rights (‘African Charter’) and other regional human rights instruments, that provides the African Court with a unique legal foundation from which to advance the protection of climate displaced people, and a distinctive responsibility to do so. 

Building on the Foundations: International Protection in the ICJ and IACtHR Advisory Opinions

While the legal context in Africa is unique, the foundations for the application of international protection in the context of climate change have already been laid in the previous advisory opinions of the IACtHR and the ICJ. The ICJ’s affirmation of the UN Human Rights Committee’s 2019 decision in Teitiota v New Zealand that States have obligations to protect people displaced across borders from being returned to a country where they face a real risk of serious harm (refoulement), including in the context of climate change, is particularly significant. 

What is needed now is an authoritative voice from Africa – a continent that bears a disproportionate share of climate harm while having contributed least to its causes. A comprehensive amicus submission filed by, among others, the Global Strategic Litigation Council, Hakijamii, civil society actors, and a drafting team of experts including the authors of this blog – provides detailed analysis of the legal frameworks applicable to cross-border displacement that could help inform the Court’s Opinion, including on States’ obligations under the OAU Refugee Convention.

The 1969 OAU Refugee Convention: An Underused Tool

In recent years, increased attention has been paid to the potential role that Africa’s OAU Refugee Convention could play in protecting people displaced in the context of climate change, as discussed by each of the authors of this blog elsewhere. The Convention is one of the most widely ratified instruments in the African Union’s legal architecture, and is binding on 48 of its 55 member States: 46 according to the African Union’s 2019 status list, plus Morocco and, according to UNHCR, Djibouti as of 2006. 

The Convention’s Article I(2) definition of a ‘refugee’ extends protection beyond Article 1A(2) of the 1951 Refugee Convention to any person who is ‘compelled to leave’ their country owing to (among others) ‘events seriously disturbing public order’. The latter phrase appears after three distinct grounds in the Article I(2) definition – external aggression, occupation and foreign domination – all of which relate predominantly to events connected to the independence movements that inspired the Convention’s adoption. In contrast, ‘events seriously disturbing public order’ is framed broadly and in a way that is capable of being interpreted in an evolutionary manner in light of the Convention’s protective objects, as we have both argued elsewhere.

While State practice on the interpretation of the phrase is limited and equivocal, there are examples of people fleeing drought and famine being recognised as refugees under the ‘events seriously disturbing public order’ ground in situations involving climate change and disaster impacts. For example, Ethiopia and Kenya – described by Kälin and Entwisle Chapuisat as examples of good practice – recognised Somalis fleeing the 2011 drought and famine as refugees under this provision, in light of the impacts of drought and famine being inextricably linked to the broader context of conflict and instability, together generating conditions which constituted a serious disturbance to public order. 

Specific questions relating to the interpretation and application of the regional refugee definition – including how to assess a disturbance to ‘public order’ and when a disturbance will qualify as ‘serious’ – have been largely unexplored in African jurisprudence, leaving decision-makers with no clear guidance as to when the impacts of climate change, either alone or in combination with other factors, trigger States’ non-refoulement obligations. This creates a risk that over-simplified and erroneous views about climate change as merely ‘natural’ could obscure the important obligations owed to at least some of those displaced in this context. This is despite the fact that it is now well recognised that the impacts of climate change and disasters are rarely, if ever, natural. Whether climate change generates, or exacerbates, a serious disturbance to public order, and whether people are compelled to leave their homes as a result, instead depends on the surrounding social, political and economic factors – factors which must be considered together with the associated risks of harm in the application of Article I(2) of the OAU Refugee Convention. Critically, the same set of conditions may compel one person to leave, while leaving another relatively unaffected.

A disturbance which does not compel everyone to leave may nevertheless compel particular groups or individuals, due to their specific exposure or vulnerabilities. Pre-existing patterns of discrimination and marginalisation frequently determine who is most exposed to climate-related risks, and who has access to assistance following a disaster. Assessing the risk to any particular individual requires a nuanced analysis that takes into account their characteristics and predicament. A core question for the African Court is how an individual’s risk of harm is to be assessed and the circumstances in which their State can be said not to effectively protect them – a question that has so far received little attention. 

Building on the foundations of the ICJ and IACtHR’s Advisory Opinions, further and more detailed advice from the African Court could guide States in a principled approach to answering these questions. In our view, a principled application of Article I(2) of the OAU Refugee Convention in the context of climate change entails the following:

• Interpreting the regional refugee definition in accordance with international law principles of treaty interpretation, including an evolutive approach to interpretation in line with the object and purpose of the OAU Refugee Convention, which is the protection of refugees and assurance of their fundamental rights;
• Avoiding artificial distinctions between so-called ‘human’ and ‘natural’ events, and instead focusing on a factual assessment of whether a serious disturbance to public order – defined by one of the authors as societal stability, public peace, safety and security –  exists as a matter of fact and irrespective of the cause or trigger; and
• Taking into account the intersections between climate-related hazards and impacts, the pre-existing vulnerabilities of those affected, and how governments respond, including their willingness to take the necessary steps to restore public order.

With these principles in mind, the African Court could usefully elaborate on how climate change can generate, or exacerbate, events seriously disturbing public order, and what it means for a person to be ‘compelled to leave’ in such circumstances. In our view, this forward-looking assessment of risk to a person if returned should not be viewed as a high-water mark reserved for imminent physical danger. 

Beyond Refugee Protection: Non-refoulement Under African Human Rights Law

Beyond refugee law, the African Court could also provide helpful clarification for States on the scope of their non-refoulement obligations under the African Charter and international human rights law. While human rights-based ‘complementary protection’ has not been widely implemented in African States so far, the African Charter provides a strong normative foundation for jurisprudential development on this front. 

Articles 4 and 5 of the African Charter protect the rights to life and dignity. The African Commission has previously affirmed that these should be interpreted broadly to protect people from risks that are both targeted or generalised  – principles that take on particular significance in the climate context. 

Crucially, the Commission has also confirmed that States’ non-refoulement obligations are engaged where there is a real risk of irreparable harm to a fundamental human right, particularly the right to life. This parallels the principle of non-refoulement under the ICCPR, as affirmed in Teitiota. It also allows for a more expansive approach to non-refoulement where other human rights are threatened by climate change impacts. These could include the Article 16 right to health, or Article 24 right of all peoples to a ‘general satisfactory environment favourable to their development’, regarding which the African Commission on Human and Peoples’ Rights and the ECOWAS Court of Justice have already developed landmark jurisprudence.

The Path Ahead: Consolidation and Extension 

As a starting point, the African Court’s Advisory Opinion could and, in our view, should reaffirm what the ICJ and IACtHR have already stated: that States’ international protection obligations, including the principle of non-refoulement, apply to cross-border displacement that occurs in the context of climate change. 

A mere re-statement of this would be a significant lost opportunity for the Court, however. A more significant, and durable, contribution would see the Court engage more closely with the practical questions States face in implementing such obligations.

The Court need not start from scratch. In addition to the analysis provided in detailed amicus curiae submissions, existing guidance from UNHCR, as well as the 2025 International Protection for People Displaced across Borders in the context of Climate Change and Disasters: A Practical Toolkit (‘Practical Toolkit’), provide detailed legal analysis and practical examples for the Court to take into consideration.

An African Advisory Opinion that speaks to the specific framework of the OAU Refugee Convention and the African Charter would fill a gap that neither the ICJ nor the IACtHR was positioned to address. It would also send a signal to the millions of people in the Sahel, the Horn of Africa, and across the continent that international law will not simply acknowledge their predicament in the abstract  – but is building the legal architecture of protection they need when it is no longer safe to stay in their homes. 

The advisory proceedings thus offer the African Court a rare and consequential opportunity: to develop the law on cross-border displacement and non-refoulement in the context of climate change, and to do so in a way that speaks directly to the lived realities of the African continent.

Photo attribution: Photo by Andreea Munteanu on Unsplash