Beyond Territoriality: Symposium on Jurisdictional “Hooks” for (Extraterritorial) Human Rights Obligations – A Tilapia Cannot Swallow A Whale: Climate Crisis and The Imperative of Extraterritorial Accountability under the African Charter

Beyond Territoriality: Symposium on Jurisdictional “Hooks” for (Extraterritorial) Human Rights Obligations – A Tilapia Cannot Swallow A Whale: Climate Crisis and The Imperative of Extraterritorial Accountability under the African Charter

[Ademola Oluborode Jegede is full professor of law, and the Interim Director of the Ismail Mahomed Centre for Human and Peoples’ Rights in the School of Law, University of Venda, South Africa. He is the initiator and Convening Editor of the African Journal of Climate Law & Justice, and an External Expert to the Working Group of Children Rights and Climate Change established by the AU Committee of Experts on the Rights and Welfare of the Child.]

Africa is one of the most vulnerable regions to the impacts of climate change although the impacts are not uniform across the region. All parts of Africa have warmed more than the global average. In general terms, vulnerable sectors to the impact of climate change in Africa, actual and projected, are documented as water resources, food security, natural resource management and biodiversity, human health, settlements and infrastructure, and desertification. The causation of this trend is extraterritorial, but even if insignificant, it involves increasing contributions among states in Africa too. For instance, in 2021 South Africa and Libya had the highest CO2  emissions per capita among the African countries. South Africa was the most polluting country in Africa as it emitted nearly 436 million metric tons CO2 while Egypt ranked next with about 250 million metric tons of CO2 emissions, followed by Algeria, Nigeria, and Libya. The power sector in Morocco is the primary driver of CO2 emissions, which accounts for 39%, followed by the transport sector with 31% of the total emissions.

There are interventions by states in Africa that aim to address climate change with negative extraterritorial implications on human rights too. A company or entity under the control or instruction or influence of an African State may be involved in climate response measures that undermine human rights in another African state. For example, Sasol, a company based in South Africa, is linked to the implementation of renewable projects in Mozambique that threatened access of local populations to basic services.

In terms of article 1 of the International Law Commission’s Articles on Responsibility of States for Internationally Wrongful Acts, states are responsible for a wrongful act which affect other states. Contributions of states in Africa to global warming, even if marginal in terms of global average, constitute a wrongful act in so far as it undermines rights of populations in other states. Also, in the context of climate interventions, in terms of article 8 of the Articles on State Responsibility, ‘the conduct of a person or group of persons shall be considered an act of a State under international law if the person or group of persons is in fact acting on the instructions of, or under the direction or control of that State in carrying out the conduct’. The effective control test has been interpreted in White Industries v India as requiring both a general control of the state over the person or entity and a specific control of the state over the act the attribution of which is at stake In terms of Article 2 of the Articles on State Responsibility. It is not only an act that may give rise to such responsibility, it may also be an omission when there is a legal duty to act. Based on the above legal reality, it is not legally impossible to hold a state in Africa responsible for the wrongful acts or omission of an entity under its control which is associated with climate interventions and undermines human rights in another state.

The question that this contribution seeks to answer is whether territorial accountability among states in Africa can address their direct acts and/or omissions linked to climate change and interventions or acts and omissions of the entities under their control that negatively affect rights extraterritorially. And if not, what potentials exist within the African Charter on Human and Peoples’ Rights and its jurisprudence that may be deployed to ensure extraterritorial accountability of states in Africa among themselves for human rights wrong associated with climate change and climate interventions.

The Limitation of Territorial Accountability

Arguably it is problematic and sometimes legally impossible to achieve territorial accountability among states in Africa to effectively address their acts and omission linked to climate change and interventions or that of the entities under their control that negatively affect rights extraterritorially. It is an extraterritorial challenge too huge for territorial accountability to handle. The reasons are not farfetched. For instance, due to the doctrine of state immunity, a state generally is immune from suit in another state’s courts. This reasoning is codified by article 5 of the United Nations Convention on Jurisdictional Immunities of States and Their Property, which provides that ‘a State enjoys immunity, in respect of itself and its property, from the jurisdiction of the courts of another State’. The legal consequence of this provision is that it is jurisdictionally impossible for a state in Africa to sue another African state before a domestic court for wrongs related to climate change and climate interventions. This consequence limits both the application of international law and national legislation on climate change by one state against the other for wrongs related to climate change and climate interventions.

Also, while territorial accountability is an option against non-state actors of other African states for wrongs in their host states associated to climate change and interventions, its practicality and the challenge of implementing the judgment obtained against non-state actors is often a limitation of territorial accountability. For example, through a careful analysis of Friends of the Irish Government CLG v Government of Ireland, Ireland and the Attorney General decided by the Irish Supreme Court in 2020, the weakness with accountability through a human rights approach to climate change at the domestic level has been exposed by Adelmant, Alston and Blainey. They contend that the Court’s pronouncements on standing, the relevance of human rights provisions, and the right to a healthy environment are sometimes counterproductive. Litigation was successful against the respondent in Gbemre v Shell Petroleum Development Company Nigeria Limited. Still, due to a lack of political will on the part of the state, the judgment in the Gbemre case has not been enforced, and gas flaring still continues in the Niger Delta area. The influence of non-state actors, which is often at the heart of climate-related activities, and collusion with states make territorial accountability less effective. Human rights scholarship is replete of accountability gaps in which powerful transnational businesses, and international financial institutions are able to secure protections under international and domestic law, and thereby escape responsibility for human rights violations arising from their activities. In fact, Hamm has shown how their lobbying is preventing the development of a binding treaty on corporate responsibility. Consequently, in SERAP v. Nigeria, the ECOWAS Court of Justice highlighted that extraterritoriality is “the only available alternative left to those seeking for justice against corporations” (para. 70).

Extraterritorial accountability potentials under the African Charter

The extraterritorial application of states’ human rights obligations is a contested and pressing issue in international human rights law. However, the legal basis for extraterritorial accountability under the African Charter is, arguably, embodied in its general obligation clause, which provides that ‘the member States of the Organisation of African Unity parties to the present Charter shall recognize the rights, duties and freedoms enshrined in the Charter and shall undertake to adopt legislative or other measures to give effect to them’. This section is not worded with territorial limit. As Bulto argues, under the African Charter, there is no territorial limit on the spatial reach of socio-economic rights such as the right to water. In particular, Viljoen notes that accountability is possible where there is ‘an extraterritorial incident or even in cases where the State has de facto control over that incident or event’ (p. 107). Article 61 of the African Charter which allows the African Commission to draw inspiration from international human rights law is a solid basis for the application of the Maastricht Principles on Extraterritorial Obligations of States in the Area of Economic, Social and Cultural Rights. According to the Maastricht Principles, states have the obligation to either jointly or separately ‘respect, protect and fulfil ’ human rights, including political rights, both within and outside their territories. 

The possibility of the construction of the African Charter for extraterritorial accountability purpose is emerging from the jurisprudence of the African Commission. For instance, in Mohammed Abdullah Saleh Al Asad v. Djibouti, the African Commission pointed out that the African Charter ‘does not expressly limit the application of the Charter within the territory and jurisdiction of State Parties’ (para. 134). The subsequently created African Court of Human and Peoples’ Rights (African Court) which complements the protective mandate of the African Commission, has further reinforced this potential in Kennedy Gihana et al. v. Rwanda (para. 114). In that case, the African Court reiterated the effective control standard and reconfirmed that states’ human rights responsibilities extend to ’acts and omissions committed within their national territories but generating extraterritorial effects‘. In Bernard Anbataayela Mornah v. Benin et al, the African Court further concluded that the state obligation to respect and to take positive steps to promote and assist the right to self-determination under article 20(3) of the African Charter imposes an extraterritorial obligation that extends beyond national borders (paras 151-157).

The possibility of construing the African Charter in ensuring the realization of extraterritorial obligations advanced under the Maastricht Principles for the protection of rights in the context of adverse consequences of climate change and interventions can be illustrated using the jurisprudence of the African Commission. In the SERAC case, the African Commission, in the context of environmental claims over the degradation of the land of Ogoni people, developed jurisprudence based on four layers of obligation in respect of the civil, political and socio-economic rights guaranteed under the African Charter: namely, the obligations to respect, protect, promote and fulfil. Arguably, these layers of obligation can be engaged in advancing the extraterritorial accountability for climate wrongs among states in Africa.

According to the African Commission, the obligation to respect entails that states should not interfere in the enjoyment of human rights. Arguably, this connotes that no state in Africa should be involved in climate change related activities or interventions that may have adverse consequences on populations in another state. This is of application in the context of biofuels projects that encroach on the land of populations in vulnerable situations. Where extraterritorial activity of one state causes violations of rights in another state, the obligation to respect rights in the context of climate change is breached. In discussing the obligation to protect, the African Commission enjoins the state to adopt measures, including legislation, and provide effective remedies in protection of right-holders ‘against political, economic and social interferences. This entails the regulation of non-state actors to ensure that their operation does not hinder the realisation of rights (para. 46). This may occur where a non-state actor incorporated in one state in Africa is involved in activities that affect rights elsewhere in Africa. For instance, activities including gas flaring by a non-state actor with origin from an African state operating in another African state may contribute to global warming. Therefore, the failure of one state to ensure that it puts in place legislation that holds its non-state actors accountable for their climate change related activities undermines the extraterritorial obligation to protect rights. In terms of the obligation to promote, the African Commissionnotes thatthe state should ensure ‘that individuals are able to exercise their rights, for example, by promoting tolerance, raising awareness, and even building infrastructures’ (para. 46). This is crucial where states in Africa fail to engage in awareness campaigns or are reticent in ensuring transparent sharing of information and assessment related to activities associated with climate change and interventions. Failure to engage in such measures is incompatible with the obligation to promote rights in the context of adverse consequences of climate change. The obligation to fulfil, according to the African Commission, requires the state to mobilise ‘ its machinery towards the actual realisation of the rights’ (para 47). This obligation is the basis for extraterritorial cooperation among states in Africa, which can take different forms including financial and technical assistance among others to embark on climate smart and responsive development. In all, in the light of the limit of territorial accountability, potentials exist within the African Charter on Human and Peoples’ Rights and its jurisprudence to ensure extraterritorial accountability of states in Africa among themselves for human rights wrong associated with climate change and climate interventions.

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