Solomon Ayele Dersso, PhD
Chairperson of the Working Group on Extractive Industries, Environment and Human Rights, African Commission on Human and Peoples’ Rights
Keynote address
General Assembly of the African Coalition for Corporate Accountability (ACCA)
6 November 2024
Nairobi, Kenya
Good morning distinguished members of the African Coalition for Corporate Accountability.
I would like to thank the organisers of this Assembly for the kind invitation extended to me in my capacity as Chairperson of the African Commission on Human and Peoples’ Rights Working Group on Extractive Industries, Environment and Human Rights to address you this morning on the topical and pressing issues, which is the thematic focus of this year’s General Assembly.
It is also a great reunion for me after some years of absence in this assembly made up of people and organizations who carry out profoundly important work to advance the human and peoples’ rights particularly of the most vulnerable among us through advocacy, litigation and policy action on corporate accountability.
The last time I addressed this Assembly was during its inaugural Assembly held in Pretoria, South Africa in July 2016. My address was titled ‘The power of big business and the human rights protection vacuum’. In that addressed, I pointed out that
In the context in which human rights is organized around the role of the state as both the principal, if not exclusive, bearer of obligations and the primary focus of accountability for human rights violations, the obligation of corporations for human rights and their role as focus of accountability remains not only poorly established in law but also severely contested. Seen against the background of the power of corporations and the major human rights impact of their operations, what the lack of legal obligation and direct responsibility of corporations for violations has left on our hands is one of the most serious challenges that have faced the human rights regime.
The imperative for filling in the human rights protection vacuum becomes more profound and compelling in the context of the existential threat that climate change poses to humanity. From a human and peoples’ rights perspective, climate change raises additional important questions about the locus of obligations. This is tied directly to the question of responsibility to climate change. The implication of this is that while the state where climate change is having dire impacts bear certain obligations, it would not be enough to address fully the human and peoples’ rights protection and the justice issues that arise from climate change.
In this address, I would therefore focus on briefly describing why and how climate change matters, trace in broad sketch the contours of the interface between climate change and human rights, the connection between climate change and corporations, identify the ways in which human rights could be impacted by climate change response measures and those most vulnerable to and affected by climate change and briefly outline how the African human rights system could and need to address the range of human rights issues arising from climate change.
Climate change and human and peoples’ rights
Climate change is the most pressing of the triple planetary crisis facing humanity, thus posing one of the most serious threats to human rights. Climate change relates to the alteration in the composition of the global atmosphere due principally to direct or indirect human activity. The alteration in the composition of the global atmosphere manifest itself in terms of real and projected changes in weather patterns related to global warming (as experienced through contraction of snow-covered areas and shrinking of sea ice; sea level rise and higher water temperatures; increased frequency of hot extremes and heatwaves; heavy precipitation events and increase in areas affected by drought, and increased intensity of tropical cyclones (typhoons and hurricanes). The direct and indirect human activity mainly concerns the human-based or anthropogenic emissions of greenhouse gases.
From a human rights perspective, of most immediate concern relates to the increase in the frequency, ferocity and duration of extreme weather events including droughts, wildfires, terrestrial and marine heatwaves, and cyclones as well as flooding that threaten both the life and living conditions of humans. According to the Intergovernmental Panel on Climate Change (IPCC), Africa, despite its negligible contribution to greenhouse gas emission and hence to climate change, is most vulnerable to and affected by climate change. Africa’s vulnerability is in part attributable to its weak economies and the resultant lack of capacities and resources for ameliorating the impact of and adapt to climate change.
Most notably, the trend in the warming rate of Africa is reported to be faster than the global average rate of warming. As a result, drought has become a recurring phenomenon in East and Southern Africa. As events during the past many months show, flooding is affecting East and North East Africa, central and west Africa regions. The six small island states (SIDS) of Africa are severely affected by rising sea levels as well as extreme weather like cyclones and tsunamis. East Africa coast has been hit by three tropical cyclones since 2015 leading to the displacement of large number of people and the destruction of infrastructure. Rising sea levels also constitutes serious threat to communities living in coastal areas, as the experience of communities in coastal west Africa such as Senegal attests.
These extreme whether events are leading to major loss and damage. Such loss and damage involve not only economic and material losses involving damage or destruciton to infrastructure, property and agricultural production. They also involve non-economic losses including loss of human lives, biodiversity, territory, cultural heritage, indigenous knowledge and language, and damage to ecosystems, soil quality, health, and mental health.
In doing so, climate change affects human rights in both direct and indirect ways. The direct ways by which climate affects human and peoples’ rights is through the threat it poses to the enjoyment of the rights and freedoms guaranteed in human and peoples’ rights instruments, such as the African Charter on Human and Peoples’ Rights. It directly affects the right to life, the right to food, the right to water, the right to housing, the right to health, the right to education, the right to culture, the right to existence, the right to safe environment, the right to self-determination and the right to development. Climate change affects human rights indirectly through the impact that they have in constraining capacities and resources critical to the protection of human and peoples’ rights.
It is not simply climate change that affects the conditions of human life. Climate response measures are not without their downside either. Climate response measures are climate mitigation (these involve measures aimed at limiting or ending greenhouse gas emission) and climate adaptation (which involve measures to adjust social, ecological, or economic systems to respond to climate change). While most climate response measures are critical to minimizing climate change and reducing the threat it poses, there are some problematic measures that are being instituted in the name of responding to climate change.
Such interventions as carbon capture and storage, carbon tax, carbon markets in particular can have adverse human rights consequences. For example, carbon markets are leading to the designation of large tracts of land for carbon markets, leading to the eviction of poor communities and indeed Indigenous Peoples from their homes to create carbon sinks to serve the global carbon markets.
Africa is most affected by climate change. And within Africa, some are more affected than others. These include most notably the poor and marginalized groups such as indigenous and minorities as well as those whose livelihoods depend on the use of land, rain and pasture such as farming and pastoralist communities. It also affects socially marginalised or vulnerable groups such as women, those vulnerable on account of their age (children and the elderly), on account of their physical and psycho-social conditions, namely persons with disabilities and those vulnerable on account of their legal status migrants, stateless persons, and asylum seekers.
For these categories of people, climate change accentuates their pre-existing vulnerabilities.
The connection between climate change and corporations/businesses
The source of climate change, emission of greenhouse gases, is as such associated with the nature of the economic growth model that involves the continuous and increasing production and consumption of material goods on the basis of the exploitation and transformation of natural resources. As such, climate change as an outcome of emission of greenhouse gases is intimately connected to the exponential growth and operation of corporations and businesses since to the industrial revolution.
Resolution 367 on the Niamey Declaration on Ensuring the Upholding of the African Charter in the Extractive Industries Sector, the Explanatory Note to the State Reporting Guidelines and Principles on Articles 21 and 24 of the African Charter, the Advisory Note by the African Commission, through its Working Group on Extractive Industries, Environment and Human Rights in Africa States, as well as the case law of the African Commission lay the parameters on corporate obligation and accountability.
In terms of the area of work of the African Commission’s Working Group on Extractive Industries, Environment and Human Rights, one theme that is increasingly becoming an issue of increasing significance is the rising rush for critical minerals in the context of the response to climate change and the scramble for green technology. The push for renewable or green technologies is heating up amid rising rivalry for dominance in green technology and the market for it. Green technologies depend for their manufacturing on availability and access to various minerals. As a recent report pointed out, most notably ‘Lithium, nickel, cobalt, manganese and graphite are critical are crucial to battery performance, longevity and energy density. Rare earth elements (REEs) are essential for permanent magnets, which are vital for wind turbines and EV motors. Electricity networks need a huge amount of copper and aluminum, with copper being a cornerstone of all electricity-related technologies.’
For Africa, as a continent endowed with these minerals, this raises major questions around terms of access by extractive companies to these minerals whose strategic importance is growing exponentially, including whether and how Africa may avoid recurrence of the resource curse experienced with earlier scramble for minerals, oil and gas on the continent. Indeed, in terms of endowment with these critical minerals, for example, 70% of global cobalt production comes from the Democratic Republic of the Congo (DRC), and over 80% of the world’s known platinum and manganese resources are in South Africa and Zimbabwe. South Africa is also a major supplier of ruthenium, iridium and rhodium (with the EU being particularly dependent on them). Gabon is also a major producer of manganese. Mozambique and Tanzania have significant reserves of graphite, and the DRC and Zambia are important sources of copper.
In the light of the race among global powers for control of these critical minerals as part of the effort for achieving major share in the digital and green industrial revolution, it is critical to ensure not only that Africa does not lose out due to vulnerability to resource curse but also that it actually benefits from leveraging these resources for advancing the development needs of the peoples of the continent. Yet, neither avoiding the risk of resource curse nor being able to leverage these critical minerals for the socio-economic advancement of Africa is guaranteed. Indeed, as the report referred to observed, ‘in most African countries the ‘dark side of the energy transition’ has become increasingly visible: local pollution of soil, air and water; the disposal of toxic residuals; intensive use of water and energy; work and environmental risks; child labour and sexual abuse; and corruption and armed conflict.’ Additionally, it warned that ‘[t]hese social and environmental problems are doomed to become increasingly unsustainable given the increasing pressure on critical minerals extraction from the major industrialised economies.’
There is thus a need for developing soft law instrument that elaborates the kind of measures that states and extractive industry companies operating in Africa should adopt. This conference may contribute towards the development of such soft law instrument. This can build on the existing instruments that have been developed by the Working Group on Extractive Industries.
The role of the African human and peoples’ rights system
The African Human Rights System availes relevant standards and mechanisms for addressing the human rights issues arising from climate change. The African human and peoples’ rights system is unique in the range of human and peoples’s rights it gives recognition to. It recognizes and accords equal legal status not only to civil and political rights and socio-economic rights but also collective rights of peoples. Its recognition of such rights as the right to safe environment and its recognition of the connection between the collective and the individual and the wellbeing of human beings and the welfare of communities and societies as well as between humans and the environment positions it to address the human and peoples’ issues arising from climate change.
Article 1 of the African Charter imposes obligations on states not only to give recognition to the rights and freedoms under the African Charter (through ratification and domestication). But it also requires them to give effect to these right through ‘legislative and other measures.’ As the African Commission established in its jurisprudence in the context of the COVID19 pandemic, by virtue of this article states are under legal obligation, among others, to adopt measures for preventing or limiting the threat that arises from health emergencies such as pandemics. Accordingly, the African Commission held, in its statement of 24 March 2020 that ‘[s]tates Parties to the African Charter have an obligation under Article 1 of the African Charter to take appropriate measures, including prioritizing the adoption and strict implementation of preventive and containment measures (such as social/physical distancing, hand washing, avoiding social gatherings and physical contacts, testing and quarantine and stringent control or closure of ports of entry) timeously before the opportunity for stopping widespread community transmission is lost. They should ensure, as part of the right to health, access to preventive cleaning products and protective materials at affordable prices and with free provision for those having no capacity to pay and no access to clean water and sanitation.’
In view of the threat that climate change poses, the Article 1 obligation interpreted on the foregoing basis, entails that States institute robust early warning system and take proactive early response measures based on early warning signs to limiting and containing projected risks from climate change induced extreme whether events. They need to put in place disaster prevention, preparedness and response laws, policies and plans backed by capacities and resources. Thus, States’ obligation to protect individuals and peoples extends to foreseeable threats to human rights related to climate change, such as an increased risk of drought, flooding and sea level rise or shrinking of water bodies such as lakes or rivers. It also requires strengthening adaptation measures.
Additionally, as the African Commission in its statement of 24 March 2020 put it, States need to take specific measures for the protection of vulnerable groups and provision of lifesaving and threat minimizing support targeting such groups. It thus stated, the experience of countries with major spread of the virus shows that COVID19 puts certain category of people, notably older persons and others with weak immunity due to underlying health conditions, at greater risk of severe sickness and even loss of their lives. It is necessary that special measures are adopted to cater for this category of people to ensure that their exposure to contracting the virus is limited including by educating members of their family, care facilities and neighbours, on insulating such group of people from physical proximity from people active in social and economic life of the public.
It further states that ‘States Parties to the African Charter should also design and implement their preventive and containment measures in a way that ensures that people living in poverty, homeless people, internally displaced persons, asylum seekers, refugees and migrants also benefit from the prevention and containment measures including through the provision of hand washing facilities, sanitizers, and disinfection and deep cleaning places of shelter and the provision of temporary shelter to the homeless in cases of complete lockdown.
Cognizant of the gendered nature of the impact of crises such as pandemics, the Statement held that the measures that states institute ‘have also to be gender sensitive having regard to the conditions of women and girls within the framework of the Protocol to the African Charter on the Rights of Women (Maputo Protocol) and are designed and implemented having regard to the needs of persons with disabilities.’
These jurisprudential articulation of the obligation of States and the measures that they are expected to adopt in response to emergencies such as pandemics applies mutatis mutandis to climate change. As such, States have obligation not only to adopt climate disaster prevention, preparedness and response policies and plans but also to ensure that such policies and plans are designed in such a way that preventive and response measures are responsive to and cater for the needs of vulnerable groups and various sectors of society according to their different needs and capabilities.
Additionally, the obligations from Article 1 of the Charter and the specific rights provisions necessitate the enactment and implementation of appropriate and adequate social protection regimes to address the peculiar circumstances of populations who have suffered adverse consequences of climate change. After the occurrence of major climate change induced extreme whether event, States are obliged to put in place measures for protection of vulnerable groups such as women and to mobilize and deploy emergency/humanitarian assistance as well as rehabilitation and reconstruction measures.
Addressing legal and policy gaps
This Assembly rightly identified the need for addressing legal and policy gaps. In relation to the extractive industries, the soft law instruments the Working Group on Extractive Industries developed over the years serve as important points of departure. Resolution 367 on the Niamey Declaration on Ensuring the Upholding of the African Charter in the Extractive Industries Sector, the Explanatory Note to the State Reporting Guidelines and Principles on Articles 21 and 24 of the African Charter, the Advisory Note by the African Commission, through its Working Group on Extractive Industries, Environment and Human Rights in Africa States, as well as the case law of the African Commission identify the legal, institutional, policy, and related measures that need to be put in place for responding to human and peoples’ rights issues including environmental threats that arise in the context of extractive industries in Africa.
These soft law instruments along with the growing jurisprudence from the case law of the African Commission also identify the steps that are necessary, both in terms of state obligation and the legal obligation of extractive companies, for protection of those most affected by and vulnerable to the impacts of the operation of extractive companies including host communities.
Of relevance to climate change, with specific reference to Article 24 on the right to environment, the Explanatory Note on the State Reporting Guidelines and Principles on Articles 21 and 24 of the African Charter articulates the substantive and procedural protection envisaged and the accompanying protection measures that need to be put in place. It thus holds
In terms of specific legal entitlements that this right gives rise to, people are first and foremost entitled to protection from environmental degradation and pollution. This would entail that people are protected from activities having the effect of degrading or spoiling the soil, water, fauna and flora and the air of the physical environment.
It is also in an attempt to identify legal measures necessary to address human and peoples’ rights issues arising from climate change that the African Commission adopted Resolution 271 ACHPR/Res.271 (LV) 2014 on Climate Change in Africa and Resolution 342 ACHPR/Res.342 (LVIII)2016 on Climate Change and Human Rights in Africa tasking the development a study on climate change and human and peoples’ rights in Africa, with the Working Group on Extractive Industries, Environment and Human Rights (WGEI) assigned to take a lead.
Of significance in articulating the kind of measures that need to be put in place is the need to address the role of those who bear the most responsibility for climate change. As such, the principle of common but differentiated responsibility is of major significance. Obligations also need to be anchored beyond and above the responsibility that states bear individually as briefly discussed above. As such, obligations particularly in terms of climate justice and climate finance as well as mitigation have to be anchored on the responsibility that those historically responsible for most emissions. Elucidating such comprehensive response to the threat of climate change to human rights needs to build of the African Charter’s recognition of the historical application of human rights obligations and the obligation for international cooperation as enunciated in the preamble to the Charter and in Articles 21 and 22 of the African Charter.
The choice of the theme for this General Assembly is both timely and deserves urgent attention. The issues that I have highlighted in this address sought to highlight the scale of the challenge we face and how best we can, working together, craft and institute the relevant legal, institutional, policy and advocacy measures having regard to the responsibilities that lie at national, continental and international levels. I do hope that the deliberation of this General Assembly provides useful input to this collective endeavour.
Thank you all very much for your kind attention, with best wishes for productive and rich deliberations!
