Symposium on Climate (Im)Mobility and the African Court’s Climate Advisory Opinion: An Opportunity for Leadership on Migrants’ Rights

[Luwam Dirar is an Associate Professor of Law and Associate Dean of Faculty Research and Development at Western New England University School of Law.

Ian Kysel is a Clinical Professor of Law and co-director of the Migration and Human Rights Program at Cornell Law School, a Non-Resident Fellow at the Zolberg Institute on Migration and Mobility at The New School, a Visiting Scholar at Stanford Law School and a 2026–27 Visiting Scholar at the Center for Advanced Study in the Behavioral Sciences at Stanford University.]

In a global context in which xenophobia increasingly dominates both domestic and international political discourse, opportunities for clarion leadership advancing the human rights of migrants are few and far between. The forthcoming advisory opinion of the African Court on Human and Peoples’ Rights (ACtHPR or Court) on the obligations of States with respect to the climate change crisis, however, is an opportunity to cement the continent as a leader in protecting the rights of migrants. And do so in a manner that may help structure African State responses in one of the most significant policy domains of this century. 

The central argument of this post is that the Court should adopt the normative innovations contained in the African Guiding Principles on the Rights of Migrations, Refugees and Asylum Seekers (African Guiding Principles or Guiding Principles) and a progressive reading of the 1969 OAU Convention Governing Specific Aspects of Refugee Problems in Africa (1969 OAU Convention) as it maps out the obligations of States with respect to climate migrants. To advance this argument, we first discuss the inadequate attention paid to migration in the PALU request, note important recent progressive development regarding migration and climate change in the region and identify how the Court should leverage these innovations by focusing part of its Advisory Opinion on migration and mobility. We conclude with some further pathways for innovation that States could pursue if guided by robust action by the ACtHPR.       

The Migration Blind Spot in the Request for an Advisory Opinion

In 2025, the Pan-African Lawyers Union (PALU) requested the Court’s advisory opinion on the human rights dimensions of the climate crisis, following important State-led efforts at other international courts. In its request, PALU identified the need for the Court to determine several key issues, including the positive obligations of States to protect vulnerable populations  (para. 181). Neither refugees nor other migrants are expressly identified as a proposed subject of the Court’s attention in the PALU request, despite repeated recognition in the request that the climate crisis and disasters have already resulted in mass displacement across the continent. 

Under its founding documents and procedures, the Court has broad latitude in the context of such advisory opinions, to address normative obligations under relevant instruments. As stated in Article 4 of the Court’s Protocol, the Court may provide an advisory opinion on any legal matter relating to the African Charter or any other relevant human rights instrument. The only relevant exception is that it cannot do so when the subject matter is not being actively examined by the African Commission in a contentious case. Here, then, the focus is not whether or not the African Commission is working to study or address the impact of climate change on displacement, but rather whether the African Commission is investigating a human rights violation in an individual communication brought pursuant to Article 46 of the Charter. Unlike the Court, the African Commission investigates and issues recommendations for adoption by the African Union Heads of States Assembly. The Court’s practice has consistently looked whether the claimant is recognized by the Commission and/or if the subject matter is under consideration by the African Commission when admitting or denying requests for advisory opinions (See request for Advisory Opinion No 002/2016 paragraphs 7 & 8; similarly see also request for Advisory Opinion 001/2026 paragraphs 22 – 24) This clearly reflects the broad legal regime and sources of law that fall under the Court’s jurisdiction and complementing, via its advisory jurisdiction, the Commission’s power to issue recommendations.

This creates a real opening for amicus curiae interventions to center the appropriate role of international migration law and international refugee law in State responses to climate change — and for the Court to take up these issues (whether or not raised by amici) in its opinion. 

One regional source of authority on which the Court should draw is work (which we supported as members of a consortium of experts) by the African Commission on Human and Peoples’ Rights (ACHPR or Commission) to articulate, in the African Guiding Principles on the Human Rights of All Migrants, Refugees and Asylum Seekers (Guiding Principles), how the African Charter and other regional instruments recognize and protect important rights in the context of cross-border mobility – and how these rights already protect what the Commission has termed “Climate Migrants” and “Climate Refugees.” Some of these arguments have been put before the Court in a brief of amici curiae filed on behalf of the Global Strategic Litigation Council and other partners (including one of us). 

ACHPR Guiding Principles & Climate Mobility 

In 2023, at the conclusion of a lengthy consultative process engaging a consortium of African and international experts (ourselves included), the Commission, which serves as the human rights organ of the African Union and is charged with promoting and protecting human and peoples’ rights and interpreting the African Charter on Human and Peoples’ Rights (Charter), adopted the Guiding Principles unanimously. The thirty-eight Guiding Principles (adopted pursuant to the Commission’s power under Article 45(1)(b) of the Charter draw primarily from standards elaborated in regional treaty law, case law, standards and resolutions of the Commission. However, as set out in the accompanying commentaries, the Guiding Principles also draw from complementary international law, including global human rights instruments as well as international humanitarian and refugee law.

The Commission’s adoption of the Guiding Principles was also informed by a study prepared by the Commission (which we helped draft) of African State responses to migration. Among other things, the study identified many of the ways in which climate mobility was already addressed by governments across Africa’s regions. 

The study also noted that Guiding Principles could be a fitting contribution to the emergent agenda for free movement being pursued on the continent, including the African Union’s 2018 Protocol to the Treaty Establishing the African Economic Community Relating to Free Movement of Persons, Right of Residence and Right of Establishment (which has not yet entered into force).  

In the context of the climate crisis, the Guiding Principles are significant for several textual moves that are innovative while still grounded in and consonant with existing regional law and standards. 

To begin, the Guiding Principles – following OHCHR (borrowing language proposed in one of our earlier works with collaborators to draft an International Migrant Bill of Rights) — defines “migrant” in a way that includes all people crossing international borders, i.e., to include refugees. Thus, not all migrants are refugees under the ACHPR definition, but all refugees are migrants. This definition helps prevent States from suggesting that there is any hierarchy of rights as applied to human mobility, or that human rights only protect those fleeing harm. (This human rights-oriented approach is distinct from the structure of the Refugee Convention, which as Hathaway has suggested — see Chapter 3.1 here – can be read to differentially confer certain rights based on an individual’s level of attachment to a State party.) Rather, as the ACHPR makes clear, there are rights that apply to all people crossing borders. And then there are complementary and more specific bodies of law applying to some migrants who meet the applicable definition(s) of refugee.

This definitional structure allows the Commission to propose a definition of “human mobility in the context of climate change” as “displacement motivated by the adverse effects of sudden- or slow-onset climate impacts, whether within or across national borders.” This follows a definition initially proposed by theAfrican Climate Mobility Initiative in 2021. Such a broad definition is useful in not differentiating between internal and cross-border mobility as a result of climate change, even as rights instruments may impose different State duties and even though the Guiding Principles apply to cross-border mobility. 

These conceptual groundings allow the Commission’s determination that when “climate change induced human mobility involves movement across international borders, those displaced are ‘climate migrants.’” (Principle 2.2). This appears to be the only (soft law) definition of climate migrant to be adopted by any international body. 

Relatedly, the Guiding Principles join discussions commissioned by UNHCR (in papers by Weerasinghe and by Hansen-Lohrey, both of whom also credit earlier work by Okoth-Obbo, Wood and Sharpe) in affirming that the serious disturbance of public order provision of the 1969 OAU Convention Article 1(2) should be read by States to be triggered in the context of climate change. The ACHPR goes further in Principle 2.3, however, in suggesting that disturbance of public order is a sufficient but not a necessary condition for those displaced by climate change to be deemed to be refugees under regional law and standards. Hence the Commission’s embrace of the term ‘climate refugee’.

From this starting point, given the strength of regional law and standards, the Commission addresses several other important aspects of the Charter’s application to the rights of Climate Migrants and Climate Refugees. First, the Guiding Principles affirm that, necessarily, migrants have a right to development that must include climate-resilient development ( Principle 32). The Commission thus urges States party to the Charter to take action to address the extraterritorial effects of climate change. And, in the context of the right to climate resilient development, second, the Commission notes that States must adopt mitigation measures in addition to adaptation and resilience strategies and that such actions must benefit all migrants, including refugees. Finally, the Commission notes that States must incorporate the creation of pathways for migration as part of their strategy to respond to climate change.

Aspects of these normative duties have now been echoed in the Americas and at the universal level by advisory opinions by the International Court of Justice and the Inter-American Court of Human Rights, but the ACHPR got there first, as it were, as a matter of African human rights law. 

Normative Innovation, Normative Opportunity 

Adoption by the Court of the ACHPR approach to climate migrants would integrate prevention, displacement, cross-border protection, and durable solutions within the existing African legal regime. First, adopting the ACHPR approach to climate migration closes noted protection gaps without waiting for a new global treaty on climate migration. The African Commission, through Resolution 628 (LXXXII) 2025, has acknowledged that the lack of a clearly articulated category for climate migrants leaves those displaced by climate change without adequate legal remedies. The ACHPR approach, as stated in the African Guiding Principles, fills this gap by adopting a progressive interpretation of the 1969 OAU Convention on Refugees, defining climate migrants, and recognizing climate change as a source of displacement but also a phenomenon that implicates existing State obligations to protect all non-citizens in the context of the climate crisis. The ACHPR approach is the best workable legal approach to protecting migrants at both the regional and international levels and, furthermore, can support State harmonization of climate migration policy on the continent with rights obligations.

Secondly, the ACHPR approach makes protection available before and after movement. Embedded in the African Guiding Principles, Principle 32 states that climate change is a source of climate-based displacement. Although the Guiding Principles focus on cross-border migration, in 2021 the ACHPR, through resolution 491 (LXIX) noted that climate change is also a source of internal displacement. By doing so, the ACHPR’s approach emphasizes African Union member States responsibility for climate change mitigation and adaptation and for supporting climate migrants resilience (see African Guiding Principle 32(3)).

Thirdly, adopting and incorporating the soft law Guiding Principles in the African Court’s jurisprudence would improve climate migrants’ access to accountability by facilitating their use in future contentious case adjudications and other advisory opinions. As stated previously, the African Court has jurisdiction to adjudicate disputes on the interpretation and implementation of the African Charter, the Court’s Protocol and any other human rights treaty. Therefore, the interpretation of African states’ responsibility in relation to climate-induced migration easily falls within the Court’s subject-matter jurisdiction and is likely to be implicated in future disputes. (Use by the Court is also likely to strengthen the Commission’s continued reliance on its Guiding Principles.)

A practical limit, however, is that individuals and eligible non-governmental organisations may bring cases directly against a State only where that State has deposited a declaration under Article 34(6) accepting such applications. As of June 2026, just seven States (Burkina Faso, The Gambia, Ghana, Guinea-Bissau, Malawi, Mali, and Niger) have deposited declarations to recognize the African Court’s jurisdiction in such instances. Other member states, like Rwanda, have withdrawn their declarations and denied individual or non-governmental organizations standing to bring disputes against them. 

Conclusion: The Dividend of Progressive Development 

The Court’s broad use of its advisory jurisdiction to address international migration and refugee law could help clarify African States’ responsibility in situations of climate-induced displacement in the broader climate crisis. However, even as a robust advisory opinion building on the Commission’s Guiding Principles could help clarify the legal regime governing State responsibility in cases of climate-induced migration, it will not, by itself, create a binding treaty, ensure respect for individual migrants’ rights and dignity in State practice – or regularise their status. A fully-elaborated and effective legal regime will require much more than one more piece of soft law. It will demand further action by States to incorporate and implement international commitments in national legislation, policy and case law; data and institutional capacity to monitor effectiveness and structures of accountability to correct errors. Clarity by the ACtHPR as to how States can take some of these actions to best protect climate migrants in a manner consistent with African law and jurisprudence, however, could be a useful catalyzing step.

Photo attribution: Photo by Tom Rogers on Unsplash