Climate Change Litigation before International Human Rights Tribunals in Africa

This article examines the role of advisory opinions in litigating climate change before international human rights tribunals in Africa. First, it argues that the advisory opinions of international human rights tribunals such as the African Human Rights Court, the ECOWAS Court or the East African Court of Justice constitute soft law which mediates between ineffective non-binding moral law like the decision of the African Commission on Human and Peoples’ Rights and ineffective binding rigid hard law. Secondly, advisory opinions of these courts can allow a margin of appreciation for compliance by domestic actors generally and specifically on climate change without having had to first make an express pronouncement on violation. Thirdly, an advisory opinion of the African Human Rights Court can help circumvent the hardship occasioned by exhaustion of local remedies rule (including cases of climate change). Fourthly, advisory opinions of these courts can supply guidance to domestic courts in handling cases before them (including those of climate change) and help prevent at an early stage the fragmentation of international human rights law. Lastly, an advisory opinion can address the problem of non liquet generally and specifically with respect to climate change issues at international and domestic planes. The article concludes that advisory opinion has a significant role to play in litigating climate change before international human rights tribunals in Africa.