Symposium on Climate (Im)Mobility and the African Court’s Climate Advisory Opinion: A Shared Call for Climate Justice – The Amicus Submissions Before the African Court

[Priyanka Naidoo is a South African human rights lawyer and an African Lawyers Alliance Fellow. She holds a BSocSci in Politics and Law, LLB and LLM from the University of Cape Town. She writes in her personal capacity.]

Against a backdrop of escalating climate harm, the African Court on Human and Peoples’ Rights (the Court) has been asked to clarify the human-rights obligations of African States in responding to climate change through an Advisory Opinion. To date, there have been over 107 amicus briefs and written observations filed in the proceedings, underscoring the significance of this upcoming Advisory Opinion. 

The particular interest in these proceedings are especially salient given that Africa is shouldering the severe and disproportionate impacts of climate change, despite its minimal contribution to historic global greenhouse gas emissions. This burden, however, does not exist in a vacuum. Environmental harm across the continent has been shaped by colonialism and systems of oppression which have resulted in the marginalisation of groups of people such as women and Indigenous Peoples. Recent commentary, including Bhavya Johari’s important decolonial reading of the Advisory Opinion request has identified the potential of Article 21 of the African Charter in producing a truly afrocentric Advisory Opinion that does not reproduce ‘green colonialism’ through external control over African land. This blog takes a related approach by tracing the thematic overlaps in some of the submissions before the Court and considering what the convergence of the emerging themes will mean for the Court’s Advisory Opinion.

A Snapshot of the Submissions Before the Court

A number of submissions before the Court demonstrate that a distinctly African approach to climate obligations is not just an academic argument. Several of the amicus briefs invite the Court to situate the climate crisis within Africa’s history of colonial extraction and dispossession, as well as recognise Indigenous Peoples not simply as vulnerable groups, but as collective rights-holders and knowledge-holders.

Fernand Guevara Mekongo Mballa’s submission is among the clearest linking colonialism and Africa’s incorporation into the global economy to the continent’s climate vulnerability. Mballa submits that the relationship between developed countries and the continent is still one of extractivism, in which the continent continues to serve as a location for resource extraction and environmental disposability. On this account, extractivism today is not simply a colonial legacy but an ongoing mechanism driving climate injustice.

The submission by the Centre for International Environmental Law (CIEL) pushes this argument beyond history and into the realm of legal responsibility. CIEL describes the climate crisis as part of a continuing colonial order, in which historic extraction and structural inequality still shape who benefits and who bears the cost of environmental harm. On that view, reparations are not simply about financial compensation, but rather, they are about addressing the systems that have left African communities disproportionately exposed to climate damage. The submission therefore urges African States to do more than provide remedies domestically, but also seek accountability from the States and companies responsible for historic and ongoing harm. Any remedy, they argue, must be grounded in Africa’s own social, political and historical realities, including the enduring legacy of colonialism.

But accountability is only part of the picture. A decolonial climate response must also confront the legal and political exclusion that leaves some communities unable to defend their land, resources and ways of life. The Minority Rights Group’s submission argues that recognising Indigenous Peoples and minorities is not a political concession, but rather a necessary condition for the effective enjoyment of rights already protected by the African Charter. In the climate context, communities that remain legally or politically invisible may struggle to assert collective rights to land and natural resources, participate meaningfully in climate decision-making, or challenge mitigation and adaptation measures that threaten their land. The submission therefore invites the Court to treat recognition, protection and participation as part of States’ climate obligations.

This emphasis on meaningful participation is captured in an important intervention from the community-led amicus submission. Filed by seven communities and community-based organisations from six African countries, the submission represents both coastal and rural communities as well as Indigenous Peoples and environmental defenders. This intervention is not simply important because it places the climate-realities of these communities before the Court, but it also insists that these communities are not merely objects of protection but sources of specialised knowledge about the causes, impacts and possible responses to climate change. Their accounts give concrete meaning to what might otherwise be seen as abstract legal categories: in Amadiba, changing rainfall has disrupted seasonal farming knowledge and destroyed staple crops; in Umgababa, flooding has destroyed livelihoods and even opened graves leaving families unable to identify where relatives are buried; while in Buliisa, oil development has simultaneously intensified environmental degradation and undermined the water sources, forests and livelihoods upon which adaptation depends. For a decolonial climate jurisprudence, this matters. An afrocentric advisory opinion should not only recognise communities as vulnerable rights-holders, but take seriously their lived and situated knowledge in determining what climate harm, adaptation, accountability and reparation actually require.

The submission of the Centre for Environmental Justice in Africa (CEJA) develops this concern in a contemporary context. CEJA cautions that climate and environmental interventions,  including conservation areas, carbon markets and reforestation initiatives, may themselves produce renewed forms of dispossession disregarding customary land rights or proceeding without the free, prior and informed consent of Indigenous Peoples. A decolonial climate response must therefore scrutinise not only the causes and impacts of climate change, but also the distribution of power within proposed solutions. CEJA’s emphasis on customary tenure, meaningful participation and Indigenous decision-making structures suggests that climate action which reproduces dispossession cannot be reconciled with the collective rights protected under the African Charter. 

Greenpeace Africa places this concern within the broader anti-exploitation purpose of Article 21 of the African Charter. Drawing on the SERAC v Nigeria case, Greenpeace Africa recalls that Article 21 emerged from the continent’s experience of colonial exploitation and cautions that the energy transition must not reproduce those extractive relations through the appropriation of land and resources without consent and equitable benefit-sharing. The joint submission of the Promise Institute, Climate Counsel, Sudan Human Rights Hub and SOMO develops this argument specifically in relation to carbon markets, contending that foreign actors may acquire access to African land and carbon sinks, extract their economic value for external markets, all while leaving affected communities with limited control or unequal benefits.

Article 21 of the African Charter, which protects peoples’ rights to their wealth and natural resources and guards against foreign exploitation, requires the Court to consider not only whether carbon markets reduce emissions, but also of whether they allow historically high-emitting actors to continue polluting while African land and Indigenous territories generate offsets on their behalf. Replacing fossil-fuel extraction with carbon markets and forest-based offsets does not necessarily break with colonial patterns of resource control. Where external actors capture the benefits while local or Indigenous communities lose control of their land, the transition risks reproducing old injustices in a greener form.

Viewed together, these submissions raise a broader question about the political economy of climate action in Africa: who controls the land and resources on which climate solutions depend, and who benefits from them? They also point to a common proposition: that climate action built on dispossession cannot be reconciled with the Charter’s protection of collective rights. A genuinely afrocentric Advisory Opinion should therefore do more than identify Indigenous Peoples as especially vulnerable. It should treat their rights, knowledge systems and Africa’s collective-rights jurisprudence as central to understanding and responding to the climate crisis.

An African Framework for Climate Accountability

The convergence in the submissions above also identifies a legal pathway for the Court. The African Charter on Human and Peoples’ Rights provides a strong foundation for holding African States accountable for climate-related harm. Although the Charter does not expressly mention climate change, its duties to respect, protect and fulfil rights, including the collective right to a satisfactory environment, require States to prevent foreseeable environmental damage, regulate high-emission activities, pursue mitigation and adaptation measures, and protect affected communities. Scholars have argued that the African Charter’s recognition of both a right to a satisfactory environment under Article 24 and the collective rights of peoples gives the African human rights system a distinctive foundation for addressing climate change. Its principles of solidarity, cooperation and environmental protection position the African Court to clarify States’ climate-related human rights obligations, particularly where food insecurity and the loss of livelihoods and land compound existing socio-economic and political marginalisation.

The Charter’s protection of individual and collective rights is particularly important where climate change threatens more than physical safety or property. For many indigenous and traditional communities, harm to land, water and ecosystems also threatens their culture, livelihoods and collective survival. The African human-rights system recognises that companies, too, have responsibilities: they cannot pursue profit or development at the expense of communities, the environment or the wider public interest. A genuinely African approach to climate justice should therefore draw on African environmental philosophies that see people as part of nature, not separate from it or above it. Read alongside the Charter’s commitment to collective rights, solidarity and human wellbeing, this offers the Court a powerful way to frame climate protection: safeguarding a stable climate means protecting the ecosystems, land and natural resources on which communities depend. Article 24 therefore gives the Court a strong basis to recognise that climate protection is not merely an abstract environmental objective, but a condition for the survival, dignity and self-determination of affected communities.

A meaningful Advisory Opinion could therefore clarify that States’ climate obligations under the Charter are both substantive and procedural. Substantively, States may be required to take reasonable measures to prevent foreseeable climate-related harm to rights including life, health, food, property, culture, development and a satisfactory environment. Procedurally, they should ensure that communities most affected by climate impacts and climate interventions have access to information, meaningful participation in decision-making and effective remedies where their rights are threatened. These duties should also include the regulation of private actors whose emissions, extractive activities or carbon-offset projects contribute to environmental harm or undermine communities’ rights to land and natural resources.

A Distinctly African Vision of Climate Justice

For Indigenous Peoples and many local communities in Africa, land, water and ecosystems are not assets to be managed from afar. They are the foundation of culture, identity, livelihoods and self-determination. The central challenge is to protect people and ecosystems while preserving African States’ legitimate development pathways.

A strongly decolonial opinion may be thought to risk alienating some African Union Member States whose political commitment will be essential to its implementation. Yet an opinion rooted in the Charter’s established traditions of collective rights, self-determination and control over natural resources is not an externally imposed agenda. Precisely because it speaks in the legal and institutional language to which African States have already committed themselves, it is more likely to command legitimacy and assent.

The Court’s advisory opinion could be a defining moment for climate justice in Africa and shaping future litigation. By protecting not only life, health and food, but also collective rights to self-determination, development and natural resources, the Charter allows the Court to frame climate inaction as a human-rights failure rather than merely a policy shortcoming. It requires rejecting both environmentally destructive models of development and climate interventions that shift the burdens of transition onto Indigenous, rural and local communities through land dispossession, carbon projects or exclusion from decision-making. This approach does not treat development and climate protection as mutually exclusive. Rather, it calls for a transition consistent with the Charter’s commitments to self-determination, equality and peoples’ control over their natural resources. 

Accordingly, the Court has a historic opportunity to anchor climate justice in a human rights architecture that reflects Africa’s own character. An Advisory Opinion grounded in the Charter’s protections of equality, development, natural resources and a satisfactory environment can clarify that effective climate action must protect communities from both climate harm and extractive or exclusionary responses to it. In doing so, the Court can articulate a distinctly African vision of climate justice in which African peoples help determine their own climate future rather than remain passive beneficiaries of externally designed solutions.

Photo attribution: Photo by Carlett Badenhorst on Unsplash