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.