A human rights approach to climate litigation before the ECOWAS court

Abstract

Climate change can be litigated through tort, common law, statute/policy, public trust doctrine or human rights among others. While climate change litigation appears to have developed in states of the Global North, its use is still relatively recent in states of the Global South. Nor has it been seriously considered from the perspective of international tribunals from the Global South. Therefore, this study examines a human rights approach to climate change litigation in the Economic Community of West African States Court of Justice (ECOWAS Court). This study finds that there are some developments in certain jurisdictions which make a human rights approach promising in terms of locus standi, justiciability, causation and separation of powers and that they can be related to the jurisprudence of the ECOWAS Court. It also finds that the doctrine of exhaustion of local remedies does not apply to the ECOWAS Court. Based on these findings, it is argued that a human rights approach can be successfully deployed to litigate climate change before the ECOWAS Court and that it can wake up West African States from their lethargy in terms of policy on, and treatment of, climate issues. The study concludes that individuals and NGOs may adopt a human rights approach before the ECOWAS Court to influence policy change and/or state behaviour in West African States.