Litigating the Frontlines: Why African Community Rights Cases Are Climate Change Cases
Communities facing extractive industry and destructive land-use projects in Africa have appealed to the continent’s human rights bodies and subregional courts to protect their lives and livelihoods, and the environments on which both depend. To date, most of these cases have not been considered “climate change litigation.” But the rights they have championed and the legal decisions they have produced are vital to climate change mitigation and adaptation strategies in Africa and around the world.
Avoiding climate catastrophe requires keeping fossil fuels in the ground and leaving forests intact. Litigation can advance those life- and planet-saving goals if it reinforces the ability of frontline communities to resist new pipelines, mining concessions, and plantations. Courts can validate the role of communities as stewards of their lands and participants in natural resource governance, provide them the compensation they are owed for past harms, and order the restoration of their environments. The adjudicative bodies that comprise the African human rights system have produced a rich jurisprudence that furthers these aims. Past decisions recognizing communal rights to land tenure and resource control, participatory development, and a healthy environment establish important legal footholds for climate litigation globally.This Article examines four such precedents from African regional bodies and argues that the type of frontline community cases they represent and the collective rights they expound are critical to effective and equitable climate action. These cases provide legal support for a community-centered strategy essential to mitigating climate change: stopping the drivers of global warming upstream at their source, rather than downstream through emissions regulations. The climate litigation movement should embrace such upstream approaches and build on these precedents. The scale and scope of the climate crisis requires expansive thinking about the types of cases and rights that can help secure urgently needed climate justice.