Symposium on Climate (Im)Mobility and the African Court’s Climate Advisory Opinion: Climate Displacement and the African Court – Non-Refoulement, Converging Standards, and the Case for Shared Responsibility

[Dr Lena Riemer is an Assistant Professor of Law at Central European University working on migration related topics.

Andrea Maria Pelliconi is a Lecturer in Human Rights Law & Global Justice at the University of Southampton, a convenor of the ICON-S Interest Group on Climate Change and Migration, and Knowledge Specialist (Law and Human Rights) with the Beyond Climate Collaborative (BCC).

Luca Scheid is an immigration lawyer in Berlin. He holds an LL.M. in International Migration and Refugee Law from Vrije Universiteit Amsterdam.]

The authors co-authored an amicus curiae brief on climate mobility for the African Court on Human and Peoples’s Rights.

In a previous post in this symposium, Cleo Hansen-Lohrey and Tamara Wood offered an incisive roadmap for the African Court on Human and Peoples’ Rights as it prepares its Advisory Opinion on States’ obligations in the context of the climate crisis. Their piece compellingly situates the advisory proceedings within Africa’s distinctive legal architecture and charts a principled course for applying the OAU Refugee Convention’s expanded refugee definition to climate displacement. This post offers a complementary perspective. As academics who have ourselves submitted an amicus curiae brief to the African Court in these proceedings, we write with a shared sense of both the significance of this moment and the depth of the legal work still to be done. 

Our submission engages with three areas that we believe warrant closer examination: the emerging global convergence on non-refoulement standards in the context of climate displacement, including the most recent pronouncements of the International Court of Justice (ICJ), the Inter-American Court of Human Rights (IACtHR), and domestic courts across Europe; specific provisions of the OAU Refugee Convention and the African Charter that have received insufficient attention; and the positive duties of cooperation and responsibility-sharing that must accompany any regional framework for climate mobility governance.

The Lowest Common Denominator That Actually Matters: Convergence on Non-Refoulement Across International and Regional Human Rights Systems

As some of us have argued elsewhere (see here and here), one important point of convergence is emerging across the recent international and regional developments on climate change and human mobility: non-refoulement. While this principle does not confer refugee status or provide durable solutions, it can prevent states from returning individuals to places where there is a real risk of serious harm. Climate change is increasingly recognized as a factor that must be considered when assessing that risk. Non-refoulement may be the lowest common denominator of an emerging cross-regional consensus, and a potential foundation for more ambitious protection frameworks.

The starting point was Teitiota v. New Zealand, in which the UN Human Rights Committee recognized that climate change can, in certain circumstances, engage non-refoulement obligations under Articles 6 and 7 ICCPR, including in relation to slow-onset processes such as sea-level rise. 

The IACtHR subsequently gave this principle considerably more institutional content in Advisory Opinion OC-32/25. It not only recognized the relevance of climate-related risks to non-refoulement, but also called for effective domestic mechanisms to protect climate-displaced persons, including humanitarian visas and temporary protection. It further situated climate-related mobility within a broader framework of vulnerability, recognizing that climate impacts may interact with conflict, violence, poverty, food insecurity and structural inequalities (paras. 414–434). Shortly after, the ICJ confirmed the relevance of Teitiota in its 2025 Advisory Opinion on climate change by expressly recognizing that climate conditions may lead individuals to seek safety abroad or prevent their return, and holding that non-refoulement obligations arise where there are substantial grounds for believing that return would expose an individual to a real risk of irreparable harm to the right to life under Article 6 ICCPR (para. 378). 

Unfortunately, however, the Court did not clarify persisting uncertainties surrounding the Teitiota decision as explicitly as needed, especially with regard to the question on “imminence” of the risk. As Foster, Mc Adam and Lambert argued in 2024, Teitiota had contributed to a significant misunderstanding by allowing a temporal admissibility requirement to become conflated with the substantive assessment of whether a “real risk” exists. Temporal imminence should not operate as an additional substantive threshold for international protection, particularly where climate harms are foreseeable but unfold gradually. The term “imminence” does not appear in the ICJ’s own reasoning on climate displacement. This omission may be read as an indirect indicator that the Court wanted to get rid of the “imminence” approach, although colleagues rightly caution against reading too much into it. Malavika Rao argues that the ICJ missed an opportunity to clarify the uncertainties surrounding Teitiota and, more broadly, to explain how non-refoulement might be complemented by other forms of protection for persons facing climate displacement.

Notwithstanding these debates, what emerges from these opinions read together is a shared methodological commitment on non-refoulement. This includes the existence of a binding obligation of states to conduct a risk-based, forward-looking examination of individual circumstances, considering climate change factors before returning non-citizens. This convergence is particularly significant for the African Court on Human and Peoples’ Rights’ advisory opinion request, as the cross-regional consensus on non-refoulement could be translated into the African legal framework. In our amicus to the African Court, we argue that OAU Refugee Convention’s expanded refugee definition, covering persons compelled to flee “events seriously disturbing public order”, is open-ended enough to encompass climate-induced displacement, and that the non-refoulement obligation in Article II(3) cascades directly from that expanded definition. 

Combined with Article 24 of the African Charter, which guarantees the right to a general satisfactory environment and imposes positive obligations on states to prevent environmental degradation, and with the implicit non-refoulement protection derived from Article 5 (human dignity and prohibition of torture, cruel, inhuman or degrading treatment), the African system bears the normative architecture to continue the convergence of standards on non-refoulement and go even further. Importantly, the relevance of such convergence across systems goes beyond attaining a uniform standard and ensures similar protection standards in practice on the domestic level as well.

What Domestic Courts are Doing: Examples of Bringing Non-Refoulement and Climate Change Together

A revealing indication of how the principle of non-refoulement might be interpreted in the context of accelerating climate change can be derived from a comparative legal analysis of relevant European case law, particularly that of German administrative courts. Based on the above-mentioned international human rights standards as well as their obligations under the European Convention on Human Rights (ECHR), numerous decisions have already considered the interdependencies between the effects of climate change and the humanitarian situation in the countries of origin. Respective domestic practice, guided by the spirit of judicial dialogue, might therefore serve as a source of inspiration for developing procedural and substantive legal guidelines on how the effects of climate change could be specifically taken into account when assessing the criteria of (complementary) protection regimes.

In two decisions concerning young Somali men, the Administrative Court of Gelsenkirchen recognized that Somalia is in a state of ongoing humanitarian crisis, with environmental conditions being one of the three main contributing factors, alongside political and socio-economic aspects (paras. 115ff.). In particular, “floods, the desert locust plague and the Covid-19 pandemic, also collectively referred to as the ‘Triple Shock’ […], have led to a deterioration in humanitarian conditions. […] These threefold challenges further displace large numbers of people and exacerbate existing inequalities, discrimination, and protection gaps. As most Somali people depend on agriculture, forestry, and fisheries, climate-related challenges such as droughts and floods severely affect their livelihoods”. Against the background of these equally precarious conditions in Somalia, the court found a violation of the non-refoulement principle enshrined in Article 3 ECHR.

In a more recent ruling, the Administrative Court of Regensburg triggered non-refoulement obligations regarding Eritrea (paras. 160ff.). The court emphasized that food supply in Eritrea is heavily dependent on weather events and, under current conditions, already fails to meet the needs of the population due to droughts, loss of arable land, overgrazing, soil erosion, and desertification. Moreover, “a further deterioration in the supply situation in Eritrea is to be expected, particularly in the medium and long term, as key sectors of the economy – especially agriculture – are suffering considerably from the worsening conditions caused by advancing climate change”.

These rulings are representative of the growing number of cases linking climate displacement to non-refoulement obligations. The more than 40 judgments from Germany, Austria, and Italy referred to in our amicus (p. 17ff.) illustrate how legal protection for people displaced across borders due to natural disasters and climate change could be implemented within the framework of well-established principles of international law. Even though these rulings did not find a violation of Article 3 ECHR solely on the grounds of the adverse effects of climate change, the courts identified climate change as a risk multiplier and consistently took into account the fact that the effects of global warming directly influence aspects such as the overall economic situation, food supply and (social) security and bear the potential to exacerbate existing vulnerabilities. 

Beyond Non-Refoulement: Cooperation and Responsibility-Sharing

If non-refoulement represents the floor of protection, it cannot be the ceiling. A legal framework for climate displacement that stops at prohibiting return risks entrenching a reactive and minimalist approach. The African system, by contrast, contains the normative framework to move decisively beyond this baseline by articulating positive duties of cooperation and responsibility-sharing grounded in both regional law and policies and broader principles of climate justice.

In her recent book, Mavropoulou argues that the principle of common but differentiated responsibilities and respective capabilities (CBDRRC), a cornerstone of international climate law, is an expression of the general principle of fairness and equity applying to international relations about global challenges, particularly refugee law and migration governance. We argue that these frameworks apply a fortiori to displacement driven by climate change, where the general principle of fairness and equity means acknowledging that states with greater historical responsibility for climate change, and greater capacity to respond, bear heightened duties to support affected states and populations.

Within the African system, this finds support in Article II(4) of the OAU Refugee Convention, which enshrines a duty on Member States to “lighten the burden” on those facing disproportionate refugee inflows, explicitly invoking the spirit of African solidarity and international cooperation. This provision signals that displacement is a matter of collective concern and requires cooperative responses, including shared responsibilities and positive obligations to prevent, mitigate, and respond to climate-related displacement. 

This is already operationalized in emerging practices and soft-law commitments in African regional and sub-regional instruments. The Kampala Ministerial Declaration articulates a comprehensive, rights-based framework structured around averting, minimizing, and addressing climate mobility, with explicit commitments on financing, data sharing, and participatory governance. The Intergovernmental Authority on Development has developed forward-looking instruments linking climate adaptation, mobility, and protection, including its Climate Adaptation Strategy and the (not yet in force) Protocol on Free Movement, envisaging legal pathways such as temporary protection and humanitarian admission in situations of environmental crisis. The East African Community has explicitly recognized “climate refugees” in its disaster risk management frameworks and introduced obligations of admission and cooperation in the event of disasters.

These instruments highlight an emerging practice of responding to climate-induced displacement with cooperative, anticipatory, and rights-based actions, including early warning systems, coordinated disaster risk reduction, facilitation of cross-border mobility (including return, when feasible), and durable solutions integrating host and displaced communities. They reflect the interdependence of states, communities, livestock, and the environment across and beyond borders and the African States’ normative orientation towards solidarity and collective responsibility. This evolving practice presents the African Court with an opportunity to give normative teeth to the principle of fairness and equity through distinctly African approaches by crystallizing a regional standard that moves beyond ad hoc responses toward a system of cooperation, solidarity, and shared responsibility. 

Conclusion and the Way Ahead: What Could the African Court Do on Climate Displacement?

The African Court now stands at a pivotal doctrinal moment. Recent pronouncements by the Human Rights Committee, the IACtHR, and the ICJ, alongside domestic case law, point towards an emerging consensus that climate-related harm must inform non-refoulement assessments through a forward-looking, risk-based approach. The African system is uniquely placed not only to consolidate this trajectory, but to strengthen it within its own normative framework. 

The OAU Refugee Convention already provides a textual basis capable of accommodating climate-induced displacement. The African Charter’s protection of dignity, due process, freedom from collective expulsion, and the right to a satisfactory environment, together with the region’s emphasis on solidarity and collective responsibility, provide a basis for approaching climate displacement as a question not only of non-return, but also of cooperation, responsibility-sharing, and equitable protection.

The forthcoming Advisory Opinion therefore has the potential to consolidate converging international standards while articulating an approach rooted in African legal traditions. Although the Opinion may still take a while, the breadth of the questions, the exceptionally rich record of amicus interventions, and the growing body of relevant jurisprudence provide the Court with a unique opportunity to offer urgently needed guidance, not only for Africa, but for courts confronting climate displacement globally.

Photo attribution: Photo by Rafael Peier on Unsplash