Symposium on Climate (Im)Mobility and the African Court’s Climate Advisory Opinion: African States Duty to Protect – Regulating Third Parties in the Context of Climate Induced Displacement

[Francesca Spry is an associate at Bailey Glasser International, and an Australian-qualified solicitor.]

Introduction 

Climate change is increasingly driving displacement worldwide. This includes in Africa, where millions of people are displaced every year due to impacts of climate change, such as drought, desertification and flooding. 

This year the African Court of Human and Peoples’ Rights (AfCHPR) is considering a landmark request for an Advisory Opinion on the obligations of States with respect to climate change. The AfCHPR has an opportunity to shape how governments across Africa protect people put at risk by the climate crisis, including those forced to move as a result. 

This is why the Global Strategic Litigation Council, Hakijamii-ESCR, the Institute for Human Rights and Development in Africa and Kituo Cha Sheria, with the support of an expert drafting team and counsel, have submitted a joint brief as amici curiae to the AfCHPR focusing on climate displacement. Grounded in testimonies from Kenya, Namibia, Nigeria and the Sahel, our submission highlights how climate-related environmental degradation and disasters are already undermining livelihoods, destroying homes, degrading ecosystems and forcing communities to move within and across borders. 

In the brief we argue that displacement in the context of climate change implicates several interdependent rights under the African Charter, including the rights to life, dignity, health, property, development, culture, freedom of movement and residence and the right of all peoples to a satisfactory environment favourable to their development. The emerging right of people to remain safely on their land is also implicated. As detailed in our brief, the right to remain can be derived from the right to freedom of movement and residence contained in arts 12(1) the African Charter, as well as in art 12(1) of the International Covenant on Civil and Political Rights (ICCPR). It has been recognised by the African Commission on Human and Peoples’ Rights along with other international law bodies, such as the Human Rights Committee and the Inter-American Court of Human Rights (for example:  Case of the “Mapiripán Massacre” v Colombia (Merits, Reparations and Costs Judgment, Case of the Ituango Massacres v Colombia (Preliminary Objections, Merits, Reparations and Costs Judgment)). The right to remain finds expression in the Kampala Convention, as well as in soft law instructions such the IASC Operational Guidelines on the Protection of Persons in Situations of Natural Disasters and the UN Guiding Principles on Internal Displacement. Therefore, and as argued in our brief, the right to remain is well-established and should be recognised by the AfCHPR  as part of its Advisory Opinion, including in its applicability in relation to displacement in the context of climate change.   

As States Parties to the African Charter have the responsibility to recognise and give effect to these rights, it is possible to propose a legal framework grounded in the African Charter that addresses displacement in the context of climate change. These obligations are generally understood as imposing four main duties on States Parties, namely to respect, fulfil, promote and to protect the rights guaranteed by the Charter (see eg Social and Economic Rights Action Center (SERAC) and Centre for Economic and Social Rights (CESR) v Nigeria para 44). The latter of those duties; the duty to protect, is the focus of this article.

Under the African Charter the duty to protect can be understood as involving two aspects: preventing non-State actors from interfering with Charter rights and, when violations occur, preventing further deprivations and guaranteeing access to remedial mechanisms (see e.g. SERAC para 61). These can be applied to the context of climate displacement. First, States’ duty of due diligence to regulate third parties to prevent corporate-driven environmental harm. Second, States’ procedural obligations to provide access to effective judicial or other remedial mechanisms. Each of these aspects are outlined below following the more substantive discussion contained within our brief. 

States’ Duty of Due Diligence to Regulate Third Parties to Prevent Corporate-Driven Environmental Harm including Displacement

It is well-established in the African human rights system that States Parties have the duty to prevent third party interference with Charter rights. In the context of climate displacement, this is a duty of due diligence to regulate third parties to prevent corporate-driven environmental harm, including when it results in displacement.

Our brief contains testimony from Mrs Melody Gold Barry-Yobo from Ogoniland in the Niger Delta. More than twenty years since the African Commission’s decision in SERAC, Ogoniland is still suffering from the devastating impacts of localised environmental pollution caused by Nigeria’s failure to protect its citizens from the conduct of oil companies in breach of its obligations under the African Charter (para 57). Yet, as Melody’s testimony reveals, the impacts of fossil fuel extraction are ongoing and now exacerbated by the impacts of climate change. This is indicative of a broader pattern in Africa, with private actors causing or exacerbating climate displacement. Clarifying that States Parties’ obligation to protect in this context entails a duty of due diligence to regulate third parties to prevent corporate-driven environmental harm, including displacement, is essential to responding to this pattern. 

This upcoming Advisory Opinion comes against the backdrop of recent landmark Advisory Opinions from the International Court of Justice (ICJ) and the Inter-American Court of Human Rights (IACtHR). 

According to the IACtHR the duty to prevent third parties from interfering with the rights protected by the American Convention on Human Rights is fundamental in the context of the climate emergency (paras 226 – 227). Pursuant to this duty States are required to adopt the necessary regulation to ensure that private entities do not engage in conduct that undermines the enjoyment of human rights (paras 226, 229 – 231). As the IACtHR observed, the obligation to regulate forms part of the broader framework of enhanced due diligence, which requires States to take all reasonable measures to prevent harm to human rights where the risks are known or should be known (paras 234 – 237). 

In its recent Advisory Opinion, the ICJ confirmed that States’ customary international law duty to act to prevent significant harm to the environment applies with respect to the climate system and other parts of the environment (para 134). Given the risk to the climate system posed by climate change, the ICJ found that the standard of due diligence for preventing significant harm to the climate system is stringent (para 138). As the ICJ made clear, States can be held responsible where harm to the environment is caused by States’ internationally wrongful conduct in failing to exercise regulatory due diligence (para 428), including where a State “has failed to exercise due diligence by not taking the necessary regulatory and legislative measures to limit the quantity of emissions caused by private actors under its jurisdiction” (para 428). 

Clearly, the failure to regulate private actors in the face of foreseeable climate risks constitutes a violation of the duty to protect and heightens the risk of displacement in the context of climate change. The African Court has the opportunity to build on this momentum, providing a framework for the duty to protect specific to the African Charter within the context of climate displacement. 

States’ Procedural Obligations to Provide Access to Effective Judicial or Other Remedial Mechanisms 

When interference with Charter rights does occur, the second aspect of the obligation to protect obliges States Parties to ensure access to redress for harms caused by climate change and corporate-driven environmental destruction. 

The importance of this procedural obligation cannot be overstated: without it the duty to protect will be rendered meaningless. This is evident in the example of the Niger Delta region exposed by Melody’s testimony in our brief. As found by the ECOWAS Court in SERAP v Federal Republic of Nigeria, Nigeria’s failure to enforce legislation and regulation, including to hold accountable any perpetrators, was at the core of the continued environmental degradation of the Niger Delta region and Nigeria’s violations of its obligations under arts 1 and 24 of the African Charter (para 104, 108, 110).  As found by the ECOWAS Court (para 105): 

“This means that the adoption of legislation, no matter how advanced it may be, or the creation of agencies inspired by the world’s best models, as well as the allocation of financial resources in equitable amounts, may still fall short of compliance with international obligations in matters of environmental protection if these measures just remain on paper and are not accompanied by additional and concrete measures aimed at preventing the occurrence of damage or ensuring accountability, with the effective reparation of environmental damage suffered.” 

The right to a remedy is well established in international human rights law and is enshrined in art 2(3) of theInternational Covenant on Civil and Political Rights (ICCPR) and art 8 of the Universal Declaration of Human Rights. 

Several African treaties bind States Parties to this procedural obligation with varying levels of specificity as to its content. Although not itself formulating a general right to an effective remedy in the same terms as art 2(3) of the ICCPR, art 7 of the African Charter enshrines the individual’s right to appeal against acts violating their fundamental freedoms. Further, art 21 of the African Charter ensures that in the case of spoliation, dispossessed people shall have the right to the lawful recovery of its property as well as to adequate compensation. 

Additionally, those African States parties to the  revised African Convention on the Conservation of Nature and Natural Resources (ACCNNR) are obligated to adopt the legislative and regulatory measures necessary for various procedural rights, such as access to justice, and are obligated to include measures for persons impacted by transboundary environmental harm in the State from which that harm emanated (art 16(1)(d), (2)). Where African States are party to the Kampala Convention they are obligated to ensure the accountability of non-State actors who cause or are complicit in acts of arbitrary displacement, as well as the accountability of non-State actors who are involved in the exploration and exploitation of economic and natural resources leading to displacement (art 3(h)-(i)). Although a soft law instrument, the State Reporting Guidelines and Principles on Articles 21 and 24 of the African Charter relating to Extractive Industries, Human Rights and the Environment elaborate on the remedial mechanisms State Parties should have in place to demonstrate they are complying with their obligations under arts 21 and 24 of the African Charter. This includes providing for grievance mechanisms, such as judicial and non-judicial complaints mechanisms, as well as the provision of legal aid and other measures that enable persons and affected communities to access grievance mechanisms. 

Whilst the content of the procedural obligation will vary, these treaty and soft law obligations highlight that States Parties must ensure access to judicial or remedial mechanisms for persons impacted by environmental harm within their jurisdiction. Further, States Parties to the ACCNNR are obligated to ensure that where a transboundary harm emanates from their jurisdiction, a person in the jurisdiction of another State Party affected by harm has the equivalent access to a remedy that would be afforded to nationals or residents in their jurisdiction (art 16(2)), which is similar to the customary international law obligation to prevent significant transboundary harm that applies to all States. Finally, States Parties should have in place other specific measures addressing displacement, such as those providing for the lawful recovery of property or compensation. 

When the conduct of private actors does contribute to or exacerbate displacement in the context of climate change, States Parties to the African Charter must ensure that they provide access to effective judicial or other remedial mechanisms. Without such measures in place the duty to protect will be rendered meaningless. 

Conclusion

This year the AfCHPR has the opportunity to set a framework grounded in the African Charter and other key regional instruments for interpreting States’ duties in relation to climate change in the African context. Although not legally binding, this Advisory Opinion will carry significant authority with the potential to influence national laws and policies, support future litigation and strengthen the protections for people affected by climate change across Africa. Globally, it will play an important role in advancing the global understanding of climate-related displacement as a human rights issue.

Across Africa, climate-related environmental degradation and disasters are already undermining livelihoods, destroying homes, degrading ecosystems and forcing communities to move within and across borders. Displacement in the context of climate change implicates the enjoyment of several interdependent rights under the African Charter.  

The duty to protect in the context of climate-induced displacement is imperative to securing the enjoyment of these Charter rights. As submitted in our brief, States Parties must act with due diligence and regulate third parties to prevent corporate-driven environmental harm and have accessible effective judicial or other remedial mechanisms in place for when violations do occur.

The full brief and joint statement can be accessed here. 

Photo attribution: Photo by Wietse Jongsma on Unsplash