Could the Road from Arusha Lead to London?

The recent wave of international Advisory Opinions on Climate Change have drawn attention to the possibility of holding large corporate actors responsible for their contribution to climate change. All three Opinions from the International Court of Justice, Inter-American Court of Human Rights and the International Tribunal on the Law of the Sea have articulated to varying degrees an obligation on States to regulate climate-adverse private sector activity. All three Opinions have (unsurprisingly) also shied away from any direct imposition of obligations on the private sector to address climate change. Although a welcome recognition of the need for greater focus on the corporations responsible for the vast quantity of greenhouse gas emissions, enforcing new regulations could prove challenging for parts of the Global South with less power and enforcement capacity than the carbon majors.

It is in this context that the pending Advisory Opinion on climate change before the African Court on Human and Peoples’ Rights (AfCHPR) presents an opportunity to (a) articulate and concretise the nature of new regulatory and jurisprudential frameworks that focus on corporate climate accountability; and (b) sow the first international seeds for challenging the entrenched divide between State and corporate obligations in the field of business, human rights, and climate accountability.

African Jurisprudence on Business and Human Rights

African human rights jurisprudence has already laid the foundation for addressing corporate climate accountability. In SERAC v. Nigeria and IHRDA v. DRC, the African Commission on Human and People’s Rights determined that the State had violated the African Charter of Human Rights due to their failure to adequately regulate, monitor, and prevent corporate abuses associated with the extractive industry. These decisions also signal the Commission’s willingness to interpret the Charter as applying in a direct horizontal manner to the corporations. Both decisions draw attention to Article 21 of the Charter, which states that “States Parties to the present Charter shall undertake to eliminate all forms of foreign economic exploitation particularly that practised by international monopolies so as to enable their peoples to fully benefit from the advantages derived from their national resources.” The This elaboration of ‘soft law’ expectations on the company to take responsibility for its human rights violations is further reflected in the Commission’s State Reporting Guidelines and Principles on Articles 21 And 24 of the African Charter relating to Extractive Industries, Human Rights and the Environment. Here, the Commission explicitly stated “while States are the primary obligation bearers under the African Charter, it is also legally recognized that corporations, particularly multinational ones, have obligations towards right holders.”

The AfCHPR had the chance to grapple with these issues in Lidho and others v. Republic of Côte D’Ivoire. In this case, the Court noted that corporations have a responsibility to respect obligations of international law, but declined to impose such a responsibility directly on the corporations, instead requesting the State to ensure this responsibility could be enforced through State regulation. On one hand, this demonstrates that the Court is comfortable ordering States to adapt its law to ensure corporations can be held accountable for environmental harm. On the other, this maintains the divide between State and corporate obligations, rendering it more difficult to hold a corporation directly accountable for human rights violations. The retention of this divide was criticized by Tchikaya J, who argued that “the Court should horizontally extend the positive obligations contained in the African Charter to the powerful multinational companies that mastermind massive human rights violations on the continent. This horizontal application can be implemented by the Court.”

Addressing Corporate Climate Accountability Through the Advisory Opinion

The prior jurisprudence alongside the findings of the other Advisory Opinions lays the groundwork for two primary contributions that the Court could make when it comes to its Advisory Opinion on Climate Change.

First, it can clearly articulate that States have obligations to adopt the necessary measures to ensure corporations both contribute to efforts to address climate change, and are held responsible for their historic and ongoing contributions to the climate crisis. Taking inspiration from the Inter-American Court of Human Rights, the Court could lay out in details what these measures should look like, including but not limited to due diligence obligations on corporations, the requirement for tangible corporate climate action plans, anti-greenwashing and anti-corporate influence measures, and important jurisprudential shifts with regard to causation that have rendered it challenging in the past to take successful corporate climate cases. This should include heightened obligations on any carbon majors operating in the region to ensure that these businesses must take measures beyond solely an obligation to conduct due diligence, including obligations to provide remediation to victims of corporate climate harm.

Second, the Court can and should articulate a need for human rights paradigms to evolve to consider the direct applicability of rights obligations on corporate actors. Building on the dissent of Tchikaya J, it can recognise the challenges with depending on States to hold transnational corporations accountable for climate harm when many of these corporations are more responsible for climate change than the State expected to hold them accountable. This will be more challenging for the Court given that thus far such sentiments have been confined to a dissenting opinion. However, even some basic statements critiquing the divides enforced in the current paradigms could lay the foundation for a broader challenge to these divides in future corporate accountability movements.

These statements from the AfCHPR will not automatically lead to the effective implementation of any State-based measures. Challenges could arise both from the disproportionate influence corporations can have over African politics, the threat of ISDS claims, and institutional difficulties with enforcing accountability mechanisms. However, one potential route to utilizing the Court’s jurisprudence is through recommendations that States adjust mechanisms to pierce the corporate veil and allow for a parent company to be held liable for the actions of its subsidiaries. In turn, this could open up a so far underexplored element to corporate climate accountability – the possibility of transnational corporate climate litigation.

The UK as a Transnational Enforcement ‘Hub’?

A key possible future transnational enforcement hub lies in one of the States historically most responsible for the challenges experienced by Africa – the United Kingdom. Through cases like Vedanta v. Lungowe and Okpabi v. Shell, English courts have shown themselves willing to consider holding British-based companies accountable for the actions of their African subsidiaries in circumstances where the former has effectively assumed a high degree of responsibility over the latter. In these cases, English procedural law is applied, but questions of liability are decided using the substantive law of the victims’ home jurisdiction. However, the courts have so far mostly avoided engaging directly with human rights law. In Alame and Others v. Shell, May J. was willing to allow the private law claims of the plaintiff to proceed to trial, but determined that the human rights elements of the claim to be inadmissible on the basis that there was no clear indication from the Nigerian courts regarding whether such horizontal claims would be permissible, and, even if so, whether they would simply be ancillary to the private law claim.

If the AfCHPR were to confirm (a) that States must ensure corporations can be held accountable for human rights violations linked to climate change, and (b) that human rights law applies horizontally to corporate climate-related activities, this could, in time, create space for domestic African courts to make explicit in their jurisprudence that their ‘direction of travel’ includes corporate climate-related human rights violations. Such developments could open the door for English courts, applying the relevant substantive law to consider human rights claims against multinational corporations for climate harm. This can in turn reallocate enforcement capacity to a wealthier State and encourage greater Global North-South dialogue to produce a more effective response to the challenges posed by corporate climate accountability.

Transnational enforcement of this kind is not without its own challenges. Procedural hurdles, questions of jurisdiction, and the vast resources of corporate defendants all stand as formidable obstacles. Yet, the combination of regional jurisprudence and transnational litigation offers a potentially useful double strategy: African-led normative leadership, supported by enforcement leverage in Global North jurisdictions where many carbon majors are headquartered, and supplemented with cooperation between lawyers across the North-South divide to facilitate fair outcomes in the pursuit of corporate climate accountability.

Conclusion

The AfCHPR has an opportunity to align with and expand on the existing Advisory Opinion’s affirmations of the need for greater corporate climate accountability. By articulating clear obligations and offering even cautious critiques of existing paradigms, the Court could equip victims, civil society, and transnational litigants with powerful normative tools to take the next steps in advancing these efforts.