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It could be expected that human rights would be a particular feature of climate litigation in African countries, not least because African regional and domestic legal systems feature extensive human rights protection, including of social and environmental rights. However, in practice, public law challenges mostly relating to environmental impact assessment have dominated climate litigation on the continent. This raises questions as to whether human rights arguments have been and are likely to be used in climate litigation in African regional and domestic courts, and if so how. This article examines these issues in three ways. First, it analyses the implications of cases grounded in human rights that engage with climate change issues and argues that these should be read as African climate cases. Second, it conducts a prospects analysis for social rights litigation in the context of climate change, arguing that existing jurisprudence in some jurisdictions may preclude such climate-focused social rights litigation. Third, the article analyses some administrative law cases, highlighting the layers of influence that human rights protection have on decision-making and outcomes. The core argument is that human rights protections and human rights-based strategies have fundamentally shaped African climate litigation, and will continue to do so.
* kim.bouwer@durham.ac.uk
Earlier versions of this paper were discussed at events hosted online by the European University Institute & Scuola Superiore Sant’Anna di Pisa in May 2021 and the LSE, University of Stirling, Center for Human Rights and Global Justice at NYU & Hertie School Centre for Fundamental Rights in June 2021. I am grateful to everyone present for our engaging discussions. My thanks for comments on earlier drafts go to Joanne Scott, Makane Mbengue, Ioana Cismas, Başak Çali, Lea Raible and three anonymous reviewers. Many thanks go to the Journal’s editors for their assistance with the article.
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