Framing Climate Litigation in Individual Communications of the African Human Rights System: Claw-Backs and Substantive Divergences

Abstract

Climate litigation is anticipated to continue expanding, especially related to the interface with the human rights of vulnerable populations and the adequacy of states’ efforts to adopt and implement climate laws. While the possibility of climate-related litigation is envisaged before the African Human Rights System (AHRS), there is no pioneering case on climate change at that level yet. Essential rights that may be relevant in climate change litigation in the AHRS are not yet tested and often have claw-back clauses that have limits imposed by national legislation. Also, climate change commitments that may link to human rights are under a regime outside the AHRS. These developments may generate conceptual divergences regarding a state’s sovereign right and climate justice in future climate litigation within the AHRS. This article explores the potential application of claw-back clauses and divergent views on states’ sovereign rights and climate justice in climate change instruments that may feature in individual communications at the AHRS.