Paper short abstract:

The comparative analysis of some of the most recent African climate and broader environmental cases will show how African cases are "painted in different colors" (Setzer) and suggest ways to possibly "adjust the lens" (Peel & Lin) through which we view climate change litigation accordingly.

Paper long abstract:

Despite the growing number of high-profile climate cases in the Global South, some of which have received significant global attention (Leghari, 2015; Earthlife, 2017), the literature on Global South-focused climate change litigation is lacking, with Africa-focused climate litigation scholarship being even scarcer (Kotze, 2020).

According to specialized climate litigation databases, only 16 cases in Africa are currently recognized as climate change litigation, representing only 2.37% of the global number of climate cases and limited to the national jurisdictions of South Africa, Kenya, Nigeria, and Uganda (Grantham Research Institute).

Against these seemingly worrying numbers, this paper questions whether the category of "climate litigation" as it is currently framed resonates with African (and broader Global South) courts and whether it is able to capture their unique characteristics such as the "peripheral" focus of climate change in the arguments (Nachmany et al., 2017), the "dilution" of climate claims within broader environmental disputes (Peel & Osofsky, 2015), and their greater "human rights anchoring" (Peel & Osofsky, 2017), in a context where cases have different purposes and courts act in a different context from that of "model" Global North climate litigations, such as the landmark Urgenda or Juliana cases.

Through the comparative analysis of some of the most recent African climate and broader environmental cases, this paper will examine how African cases are "painted in different colors" (Setzer, 2019) and suggest ways to possibly "adjust the lens" (Peel & Lin, 2019) through which we view climate change litigation accordingly.

Paper short abstract:

The African Charter on Human and Peoples' Rights is one of the strategies that has been relied upon by environmental injustice victims to improve access to justice and hence the African Charter has a role to play in improving the prospects of climate justice and climate litigation in Nigeria.

Paper long abstract:

Countries in Africa (and other countries in the Global South) are bearing the brunt of climate change. In Nigeria, the already vulnerable communities and individuals face the brunt of environmental injustices exacerbated by the impacts of climate change. This has been exacerbated by a plethora of factors not limited to poverty, the activities of multinational companies (MNCs) and endemic environmental injustice issues in many parts of the country (especially the Niger Delta wherein the oil and gas industry is located).

One possible strategy to improve climate action in Nigeria is the possible reliance on the climate justice paradigm. This paper argues that existing environmental justice caselaw can be the basis of climate litigation in Nigeria. Furthermore, this paper will discuss the role of the African Charter on Human and Peoples' Rights as a possible tool to promote climate justice in Nigeria. The African Charter has impacted positively on Nigerian laws and courts. The African Charter is one of the strategies that has been relied upon by environmental injustice victims to improve access to justice and hence the African Charter has a pivotal role to play in improving the prospects of climate justice and climate litigation in Nigeria.

Paper short abstract:

The paper aims to explore the impact that oil drilling has on human rights, including the legal obligations of states and courts to prevent, stop and redress human rights abuses through a comparative case study involving Shell Corporation oil extraction in Nigeria and the Ogoni peoples.

Paper long abstract:

The paper aims to explore the impact that oil drilling has on human rights, including the legal obligations of home states and courts to prevent, stop and redress corporate-human rights abuses through a comparative case study involving Shell Corporation oil extraction in Nigeria and the Ogoni peoples. The Ogoni v Nigeria case represents a landmark case on environmental rights protection. In 2003 the African Commission found Nigeria in violation of the right to a satisfactory environment under the African Charter for gross environmental rights violations committed by Royal Dutch Shell against the Ogoni peoples and their territories for fifty years.

Yet, neither the Nigerian government nor Royal Dutch Shell took effective measures to restore the contaminated environment. Twelve years after the adoption of the UN Guiding Principles on Business and Human Rights stating that corporate businesses have an obligation to respect human rights, Nigeria is still failing Ogoni victims to have their environmental rights protected and denies the Ogonis victims access to judicial remedies for the human rights abuses committed at the hands of Royal Dutch Shell. Thus, this paper examines the obstacles that are encountered by the Ogonis and other victims of corporate-related environmental rights abuses. From a practical perspective, the Corporate-State relationships often result in governments being unable or unwilling to hold corporations to account, protect environmental rights and guarantee access to remedy.

Paper short abstract:

This paper considers the role UK courts play when making decisions that affect natural resource - especially gas - extraction in African countries. It examines recent caselaw in particular questioning what 'consistent with the Paris Agreement' could be taken to mean in transnational litigation.

Paper long abstract:

I will focus on the recent R(oao )Friends of the Earth v UKEF) in which FOE challenged the award of export funding on public law grounds, essentially because they said that the project and funding for it were not consistent with the Paris Agreement. This case is a natural descendant of the recent wave of UK climate litigation which has focused on public law challenges to development consent, but of course very different in that relates to provision of finance. It raises very similar issues in relation to the climate change assessment that was conducted by the decision-maker and whether it was lawful to do so without assessing Scope 3 emissions. The decision of the court showed nuance when it came to the question of what it meant to be consistent with the Paris Agreement, but it is difficult to see how funding decisions will be made in the future that don’t undermine principles of CBDR-RC. I will make some secondary observations about the fossil fuel litigation in Okpabi v Shell litigation in which a preliminary hearing was decided in London in 2021 following Vedanta v Lungowe in 2019. I would frame this as climate litigation and will draw on previously published work in questioning how the English courts might be said to deliver ‘justice’ in relation to harms caused by fossil fuel companies abroad.

Paper short abstract:

Climate change will exacerbate drought and drought-induced migration, making the evolution of drought governance frameworks a matter of central importance. Drought litigation from southern Africa adds to transnational environmental governance of this risk.

Paper long abstract:

Scholarship on transnational environmental governance recognizes that traditional national and international regimes of environmental law are insufficient to respond to pressing issues of global environmental concern. Transnational law is international, national and transnational all at once, providing opportunities for a wider range of social actors to contribute to the principles that govern humanity's response to pressing, overlapping existential crises, including through actions brought before the courts. Mainstream climate scholarship recognizes the contribution of climate litigation to transnational environmental governance, but the cases and scholarship reflect a mitigation bias. Using a risk-thematic approach to identifying climate cases in Africa, this paper explores the contribution of drought litigation to transnational governance, with the emphasis falling more squarely on alleviating and responding to climate risk. The impacts of climate change vary in time, and space, but the extreme event of drought has global ramifications - for regions impacted by drought and drought-induced migration. These impacts are projected to increase with increased global warming. This makes the manner in which courts are already dealing with conflicts arising from drought a matter of central importance. To illustrate the contribution of drought litigation to transnational climate governance, the paper explores a number of drought litigation cases from drought-prone southern Africa.

Paper short abstract:

The South African Constitution calls on the judiciary to engage in legal reasoning and interpretation that advances its transformative purpose: i.e. substantive adjudication. The paper explores the significance of this constitutional requirement for the country's growing body of climate cases.

Paper long abstract:

In 2021 and 2022, in the Sustaining The Wild Coast litigation, climate cases seeking to prevent new fossil fuel development along South Africa's coastline have been adjudicated in the courts. In these cases, the courts engaged, to some extent, in substantive adjudication to enforce the environmental right entrenched in the South African Constitution. They did so since substantive adjudication is constitutionally mandated, including by section 39(2) of the Constitution, which imposes an obligation on courts to interpret law in a manner that gives effect to the spirit, purport, and objects of the Constitution, including the social justice imperative contained in the Constitution's the preamble. By virtue of engaging in substantive adjudication, the courts advanced what I refer to as transformative environmental constitutionalism. The courts did so by adopting a justice-oriented framing of the disputes, and recognizing that the environment and people within them exist in a single socio-ecological system. Further the courts upheld the environmental right alongside other intersecting rights, including by engaging with the significant role that Indigenous peoples play in protecting the environment. With a view to contributing to the discourse on whether there is an "African way" to adjudicate climate cases in pursuit of environmental protection, this paper explores the significance of substantive climate adjudication, drawing on insights revealed by the Sustaining The Wild Coast litigation.

Paper short abstract:

This research interrogates the local impact of transnational litigation, legal opportunities for climate and environmental rights protection for mining host communities, and lessons from the jurisprudence of Zambian superior courts for global climate litigation and environmental rights discourse.

Paper long abstract:

The mining industry is essential for climate change mitigation and adaptation, not least because of diverse value chains linked to it. Mining contributes significantly to Zambia’s Gross Domestic Product and foreign exchange earnings. Local host communities enjoy direct economic benefits and infrastructural development. However, vulnerable populations within host communities often experience disproportionate negative externalities, including human rights violations and environmental injustice. Affected communities have instituted several cases seeking justice in domestic courts and foreign jurisdictions, including the UK and South Africa. In a landmark ruling in 2019, the UK Supreme Court was receptive to a Zambian community’s claim based on pollution from a mine, with the mine operator and its UK-based parent company as respondents. The companies subsequently settled the lawsuit outside the court process without argument of the substantive suit; they did not admit liability. Another Zambian community has recently initiated a class action against Anglo American for lead mining pollution. Anglo American was a minority shareholder in the facility until nationalisation by the Zambian government in 1974. The case, instituted in South Africa, raises important questions of corporate liability for historical harm and the legal duty of care to host communities. High legal costs and inherent weaknesses in the domestic legal system are critical drivers of transnational litigation. This research interrogates the local impact of transnational litigation, legal opportunity structures for climate and environmental rights protection for mining host communities, and lessons from the jurisprudence of Zambian superior courts for global climate litigation and environmental rights discourse.

Paper short abstract:

Against the increasing number of African court rulings enforcing the rights of nature, the paper discusses the courts’ reluctance to recognize that nature may be legitimate to stand in courts, by exploring courts’ reasonings, and the related legal debate, in a selection of African legal systems

Paper long abstract:

Framed in the global movement to confer rights onto nature and/or natural objects, the paper analyses African domestic courts’ attitude towards legitimizing nature to stand in judgment per sé and its eventual implications for the creation and consolidation of new, ecocentric, legal paradigms in environment justice on the one hand, and, on the other, it opens the discussion on the role of courts in crafting those new ecocentric paradigms.

In the history of the law, the progressive enlargement of those entitled to have rights firstly, and to stand in judgment to vindicate those rights, secondly, has never been smooth. Neither it is for nature.

Some African courts have a tradition of giving broad interpretation to the question of standing; some by adopting the actio popularis and public interest doctrine, others by enlarging the notion of sufficient interest to act. Whether such broadness shall encompass also the nature still is to be determined.

The existence of both individual environmental rights and of an environmental public interest is out of question, at least de jure. Whether those rights are people’s rights or nature’s rights remains, on the contrary, rather contested. Therefore, the discussion of the recognition and/or the refusal of recognition of the locus standi to nature before African courts is an interesting prism through which enquiring into the creation of new ecocentric legal paradigms in African public law.

Paper short abstract:

Substantive engagement with an environmental right requires that both state and non-state/private duties be interpreted to promote the spirit of the right. African courts are well placed to bridge the gap between rights-based normative frameworks and private liability for climate harms and losses.

Paper long abstract:

Despite significant advances in attribution science that identify private companies as contributors to climate change, legal regimes have not yet caught up in respect of holding such entities responsible for climate harms. Whilst the Office of the High Commission on UN Human Rights has expressed that businesses are duty-bearers in relation to climate impacts, there are few legal mechanisms available to victims of climate harm for transnational loss and damage. Corporate law has attempted to fill this gap in available transnational governance tools by adopting CSR practices and advancing human rights initiatives. However, the focus has remained on reporting and disclosure and not on the harm itself. Seeking out direct rights violations by private entities, as seen in RWE v Lliuya, is one way to compensate victims, but such an approach is yet to garner the wide-scale success necessary to incentivize meaningful climate action in international business practice. What is yet to be fully explored within the “global market of ideas”, is the normative value of environmental rights for governing private obligations and liability. Here, African jurisdictions can provide invaluable insights on how to bridge the gap between CSR frameworks and liability regimes. African constitutional jurisprudence allows judges to substantively engage with and develop all areas of law – public and private – to promote a set of values and norms. This Paper explores how the interpretive value of enshrined environmental rights has the potential to evolve into binding obligations on private entities in the African context.