In an article for the Global Energy Law and Sustainability Journal, White & Case partner Markus Burianski, local partner Federico Parise Kuhnle and associate Janina Moutia-Bloom discuss climate change disputes in Africa.
Climate change disputes are on the rise globally, being brought against both States and corporate actors, and before judicial, quasi-judicial, and increasingly, non-judicial fora. While only a handful of cases have been successfully brought in Africa to date, the emerging and increasingly sophisticated policy, legislative and constitutional frameworks seeking to tackle Africa's extreme vulnerability to climate change impacts – coupled with the introduction of specialised environmental courts – render the region particularly fertile for future climate-related claims.
In this article, we offer some reflections on (i) jurisdictional 'hotspots' where claimants have been especially active in bringing disputes so far in the region, (ii) recent cases in Africa that fall in-step of the broader international trend of NGOs and environmental defenders using litigation to address climate governance gaps, identify and prevent environmental risks and promote human rights and (iii) evolving and emerging categories of Africa-inspired climate change disputes, such as claims brought against parent companies in the English courts concerning alleged harms caused by African subsidiaries, or energy transition-related investment disputes before arbitral tribunals.
We also share horizon-scanning insights on how disputes before non-judicial international fora are expected to rise (for example, before OECD National Contact Points and the UN Special Procedures mechanism). We further note how African courts are demonstrating an increased willingness to provide judicial resources and a platform for NGOs to intervene as third-party observers of climate cases, enabling them to provide expert perspectives on novel aspects of climate impacts on human rights to be taken into account in judges' decision-making.
Furthermore, we predict that the NGOs and environmental activists already active in launching strategic climate litigation in other jurisdictions (namely North America, Europe and Australia) are likely to make considerable efforts in developing regions like Africa, towards capacity-building of the judiciary instead. For example, NGOs have already signalled intentions to continue working with local lawyers and communities to draft, bolster, interpret and enforce new or existing legislation or constitutional rights, with a view to holding State and corporate actors to account for contributing to climate change without adequately safeguarding human rights and the environment while pursuing their investments and/or operations.
We conclude with a recommendation to all affected stakeholders, whether as a prospective claimant, respondent, or third-party intervener in such cases, to seek advice from counsel who have experience advising clients in cross-border climate change-related disputes. Despite an enormous potential for such disputes in the region, because only a small number have been brought before the local courts in African states to date, potentially impacted stakeholders will need to carefully scrutinise decisions adopted in North America, Australia and Europe for interpretative guidance on how African judges may approach similar cases domestically (for example, the recent decision by the European Court of Human Rights in Verein KlimaSeniorinnen Schweiz and Others v Switzerland).
Keywords: Climate change disputes; strategic litigation; African courts; rights-based claims; fossil fuel investment; investment arbitration; non-judicial fora; climate governance; right to a clean environment.
This article was published in EUP’s Global Energy Law and Sustainability Journal here.
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This article is prepared for the general information of interested persons. It is not, and does not attempt to be, comprehensive in nature. Due to the general nature of its content, it should not be regarded as legal advice.
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