Climate litigation before UN Human Rights Committee: Prospects and challenges for African litigants

Introduction

Climate change litigation before international human rights bodies is not a new phenomenon. ¹ The choice of international human rights bodies has been attributed to their strategic position and international character. ² Since 2005, treaty bodies have been approached by individuals and groups with climate change-related complaints, but they were only successful for the first time before the United Nations Human Rights Committee (HRC). ³ Since then, several rights-based climate-related complaints and requests for Advisory Opinions have been filed and decided by international courts and tribunals, including the European Court of Human Rights (ECtHR), International Court of Justice (ICJ), ⁴ International Tribunal for the Law of the Sea (ITLOS) and the Inter-American Court of Human Rights (IACtHR). For instance, in KlimaSeniorinnan v. Switzerland, ⁵ the European Court on Human Rights (ECtHR) found that Switzerland had violated the rights of a group of older Swiss women, especially their right to life and health as a result of its inadequate climate policies. ⁶ The ECtHR ruled that States Parties have a positive obligation to protect individuals from the adverse impacts of climate change.

However, the majority of the petitions before international human rights courts and tribunals have been brought by applicants in the Global North, who are increasingly turning to international judicial forums to seek redress and protection from the impacts of climate change. ⁷ In addition to other approaches and causes of action being employed by victims and nongovernmental organisations (NGOs) in courts, rights-based climate litigation is becoming an increasingly powerful pathway to climate justice for vulnerable groups experiencing the impacts of climate change. ⁸ As climate litigation is expanding, victims and NGOs are also exploring other international treaty bodies, including the HRC, to ramp up pressure on States. This is especially because severe impacts of climate change constitute threats to the enjoyment of human rights protected under the International Covenant on Civil and Political Rights (ICCPR). The HRC is established and empowered to monitor States Parties’ compliance with the ICCPR. Moreover, the individual complaint procedure recognised by the First Optional Protocol to the ICCPR allows individuals to directly bring claims against States Parties before the HRC.

The decision of the HRC in Daniel Billy v. Australia ⁹ (commonly known as the Torres Strait Islanders case) has brought to the fore the emerging contribution of the HRC in addressing the climate crisis and potentially inspired more people to hold states accountable for the impacts of climate change. The case is unprecedented for two reasons: firstly, it is the first time an international human rights quasi-judicial body has found a connection between the violation of international human rights treaty (ICCPR) and climate change. Secondly, this is the first time the HRC has found a State (Australia) liable for violation of international human rights by failing to take timely and adequate climate adaptation measures. ¹⁰ The ruling of HRC even though not binding, has created both moral and political pressure of international character on the violating state party. ¹¹

Despite the increasing impacts of climate change in Africa, ¹² especially on the vulnerable groups, there is a paucity of climate-related cases at the national, regional and international judicial forums. It is only recently that a nongovernmental organisation, PALU, has, for the first time on the African continent, submitted a petition, requesting the African Court on Human and People's Rights to issue an Advisory Opinion on the obligations of African States in relation to climate change. ¹³ Climate litigation before domestic courts in Africa is emerging. However, the challenges of access to justice in many of African countries are discouraging victims of climate change and potential litigants from approaching domestic courts for redress, which then prevents them from fulfilling the admissibility requirements of regional and international courts and tribunals.

While a thorough consideration of the reasons behind the paucity of climate litigation at the African human rights system, despite its immediate benefits, is undoubtedly a worthwhile project, it is not one we seek to pursue here. In any case, many scholars ¹⁴ have done this. What we instead aim to do is to consider additional and complementary litigation pathway available to victims of climate change in Africa through the individual complaint procedure of the HRC, and how it can be employed to expand access to justice.

It is important to note that African states have a legal obligation under international law to address both mitigation and adaptation aspects of climate change. ¹⁵ However, while petitions premised on insufficient mitigation action may not be successful, given the insignificant greenhouse gas emissions of most African states, ¹⁶ adaptation-related claims offer a stronger litigation pathway for victims of climate change given its human rights dimension. Establishing causation – an integral part of proof – in adaptation-related cases is less stringent because of its human rights dimension. ¹⁷ Also, HRC has well-established jurisprudence stating that States Parties have obligations under the ICCPR to implement measures preventing acts that threaten enjoyment of human rights, including climate change. ¹⁸ Extreme weather conditions such as drought, flooding and sea level rise are impacts of climate change that directly threaten enjoyment of human rights of victims, including right to life, right to privacy, home and family life and right to enjoyment of culture. Also, adaptation obligation of states is not dependent on the amount of state's greenhouse gas (GHG) contributions. ¹⁹ The individual pathway to the HRC offers a promising avenue for African litigants to pursue climate adaptation-related claims.

Therefore, in anticipation of climate litigation before the HRC in the near future, this article identifies the potential prospects and challenges African applicants may face before the HRC. It also serves as a practice note that provides relevant information to parties on the procedural and substantive challenges that may arise when litigating climate-related matters before the HRC. In identifying the climate cases, the article relies on the methodology adopted by the global climate change databases, maintained by the Sabin Center for Climate Change Law of the Columbia Law School and the Climate Change Laws of the World of the Graham Institute. ²⁰ Despite their limitations, ²¹ the databases provide significant resources for this article. The databases currently record twenty-nine (29) climate-related cases filed in some domestic courts across six (7) African countries. ²² We find that the lack or paucity of climate cases at the regional and international judicial bodies can be attributed to the difficulties in meeting the admissibility requirements of exhaustion of domestic remedies, given that only a few cases have been brought at the national level. We note that following in the footstep of Daniel Billy v. Australia, the challenge of admissibility requirement can be overcome by African applicants before the HRC.

While the ‘Introduction’ section serves as a general introduction, the ‘Climate change governance in Africa’ section analyses climate change governance and priorities in Africa, noting that despite the increasing impacts of climate change on the continent, litigation in domestic and international courts and tribunals remains limited. The ‘HRC as an additional pathway for African litigants’ section examines the role of the HRC in climate litigation, with particular reference to its decision in Daniel Billy v. Australia. It also highlights the complementarity between the HRC and the African human rights system regarding climate change claims. ‘Prospects and challenges of climate litigation before HRC’ and ‘Potential prospects of climate litigation by African litigants at the HRC’ sections analyse the potential prospects and challenges African applicants may face at the HRC, and suggest strategies to overcome them. The ‘Conclusion’ section concludes by highlighting the benefits of climate litigation by African litigants before the HRC.

Climate change governance in Africa

Scientific findings show that Africa is one of the most vulnerable continents that is adversely impacted by climate change, despite its negligible greenhouse gas emissions. ²³ Given its pre-existing developmental challenges, Africa has been described as ‘the continent most vulnerable to the impacts of climate change’. ²⁴ Historical inequalities created by colonial exploitation and unbridled extractive activities have placed the continent and its people in a fragile and vulnerable position, exposing the continent to the threats of climate change.

In many African countries, the realities of climate change can no longer be denied. ²⁵ From the rising temperatures, ravaging droughts, heavy floods, intense heat waves to sea-level rise, the impacts of climate change are leading to the loss of life, destruction of property and biodiversity. ²⁶ Existing socioeconomic vulnerabilities of Africa such as high rate of poverty, inadequate and weak legal and institutional frameworks, decayed infrastructure and leadership failure, are exacerbating the susceptibility of the continent to the climate crisis. ²⁷ The severity of climate change is threatening the enjoyment of crucial human rights, such as the right to life, right to private and family life, education, health, housing and culture. ²⁸ Even so, vulnerable groups such as children, women, indigenous people, elderly and people living with disabilities are more exposed and at risk of the impacts of climate change. ²⁹ From Western, Eastern, Central, Northern to Southern Africa, the devastating impacts of climate change are worsening the living conditions of the people, especially the vulnerable groups. ³⁰

As part of the global stakeholders to address the causes and impacts of climate change, many African nations are signatories and parties to both regional and international instruments to combat climate change. This indicates that African states have obligations to not only protect their people from the adverse impacts of climate change, but also ensure that they take necessary measures to prevent violations of human rights in connection with climate change (UNFCCC, Paris Agreement, ICCPR, and African Charter). Also, at the domestic level, some African countries have either enacted dedicated climate laws, policies (Nigeria's Climate Change Act, 2021; Kenya Climate Change Act, 2016; and South Africa Climate Change Act, 2024, among others) or mainstream climate concerns into existing environmental legislations. ³¹

Despite these developments, evidence shows that many African states are not adequately prepared to tackle the existential threats posed by climate change. ³² This insufficient action in the face of mounting climate crisis in Africa implicates crucial civil and political human rights protected under the African Charter and other international treaties. ³³ Also, this calls into question the climate change priority of African states despite their commitments to implementing both mitigation and adaptation pledges.

While both mitigation and adaptation are crucial to addressing the climate crisis in Africa, ³⁴ debates are ongoing regarding the climate change priority of African states in relation to mitigation and adaptation. ³⁵ Indeed, the international climate change regime directs developing countries, which have historically benefitted from fossil fuel extraction, to take the lead in cutting their greenhouse gas emissions. ³⁶ However, developing countries, including African states, do not have immediate obligations to achieve absolute emissions cuts. ³⁷ African states have and continue to argue that it will be unfair to expect them to cut their carbon emissions when historically they only contribute little or negligible amount of greenhouse gas to the atmosphere. ³⁸ Many factors including the vulnerability of the continent, limited contribution to GHG emission, developmental priorities, among others, have been put forward as justifications why climate adaptation should be a central focus for Africa and the Global South's unique climate challenges. ³⁹

However, states’ inability to adequately protect victims of climate change has led to the emergence of climate change litigation across the world, including in some African states. ⁴⁰ The role of courts as a critical legal tool in climate change governance has been recognised in many jurisdictions, especially in many countries of the Global North, where courts are interpreting national laws and states’ obligations under international agreements to hold them accountable. However, in sharp contrast to this exponential growth of climate litigations in the Global North, there has been a paucity of climate cases from Africa at the regional and international levels. ⁴¹ Even at the domestic level, the small number of climate-related cases is not a reflection of the problematic climate change situation of many states.

Available data, as of May 2026, indicates that only twenty-eight (29) climate-related cases have been filed in seven (7) African states including Nigeria, Kenya, South Africa, Uganda, Malawi, Zambia and Namibia. ⁴² From the figure above, out of the 29 climate-related cases, twelve (12) were filed in South Africa alone. ⁴³ Scholars have attributed this low climate litigation profile at the national and regional levels to some factors. For instance, Suedi and Fall attribute this to obstacles at the domestic level such as weak legislative frameworks, slow judicial processes and limited financial resources. ⁴⁴ They further note that this will typically impede prospective applicants from exhausting domestic remedies, which is a precondition to bringing claims before the African Human Rights Systems and other international human rights bodies.

However, Boshoff observes that another strategic reason is because most African states are not the major cause of climate change, given their low GHG emissions, and therefore may not be significantly held liable for the current climate crisis. ⁴⁵ This will create problems of proof and causation for litigants in establishing liability against African states at national, regional and international judicial bodies. While many developing countries, including African states, may raise issues of justice and fairness for not prioritising or take adequate measures to reduce their greenhouse gas emissions given their low carbon footprints, their obligations to provide adaptation measures notwithstanding the amount of their GHG emissions is sacrosanct. ⁴⁶ Furthermore, Luporini argues that the adaptation obligations on developing countries are not dependent on their amount of GHG emissions because climate change constitutes a threat to the enjoyment of human rights protected under regional and international treaties, including the African Charter and ICCPR. ⁴⁷

In this sense, developing countries, including African states, have legal obligations to consider adaptation as a priority because the continent is already suffering from the adverse effects of climate change, threatening the enjoyment of human rights. ⁴⁸ It, therefore, means that a rights-based climate adaptation approach is a far stronger pathway to holding African states accountable for the impacts of climate change that threaten the enjoyment of regional and international human rights instruments. This is already happening at the domestic levels. ⁴⁹ For instance, in Tsama William and Others v. Uganda's Attorney General, ⁵⁰ the applicants who are victims of landslide filed a climate adaptation related claims, alleging that the relevant Ugandan government agencies have failed to put in place an effective machinery against landslides in Bududa district, ⁵¹ and as such, their action or inaction have led to the violation of the applicants’ fundamental rights, ⁵² including right to life, right to clean and healthy environment, right to property and right to physical and mental health. The applicants further contended that their district is likely to be affected by more landslides in the future as a result of changing rainfall patterns and increasing extreme weather conditions caused by climate change and environmental degradation. ⁵³ They argued that the government is failing in its positive obligation under national and international climate change law. ⁵⁴ They are therefore seeking monetary compensation for the violation of their rights and cost of resettlement to safer areas. ⁵⁵

It is important to acknowledge that climate litigation before the African human rights system, especially the African Commission and African Court, offers more immediate and stronger benefits for African litigants. While a thorough consideration of the benefits of climate litigation before the African human rights system is undoubtedly a worthwhile project, it is not one we seek to pursue here. In any event, many scholars have already done this. ⁵⁶ In the next section, we will examine climate litigation before the HRC and its complementarity with the African human rights system.

HRC as an additional pathway for African litigants

The UN HRC is a treaty body established under Article 28 of the International Covenant on Civil and Political Rights (ICCPR). ⁵⁷ Its major function is to monitor the implementation of the provisions of ICCPR by state parties. ⁵⁸ To that extent, all States parties to the ICCPR undertake to submit reports to the HRC on the measures they have adopted to give effect to the rights enshrined in the ICCPR and the progress made in the enjoyment of those rights. The HRC discharges its responsibility through four procedures: state reporting under Article 40, individual complaints based on the First Optional Protocol to the ICCPR, inter-state complaints under Article 41 and preparation of general comments under its procedural rules. ⁵⁹

As a human right quasi-judicial body, the jurisdiction of the HRC is now being invoked by victims of climate change-related human rights violations. The individual complaint procedure under the First Optional Protocol allows private individuals to submit climate change related petitions against States Parties who have ratified the Protocol. This is evident in the two notable cases decided by the HRC: Daniel Billy v. Australia and Teitiota v. New Zealand. In addition to the HRC's well-developed jurisprudence on human rights, and recently its connection to climate change, the connection between climate change and human rights has been a subject of intense debates. However, the consensus is that climate change threatens the enjoyment of human rights. ⁶⁰ The International Court of Justice (ICJ) has recently issued an Advisory Opinion declaring that ‘States have obligations under international human rights law to respect and ensure the effective enjoyment of human rights by taking necessary measures to protect the climate system and other parts of the environment’. ⁶¹ Also, the Paris Agreement in its Preamble clearly recognises the connection between climate change and human rights and the principle of intergenerational justice, urging States Parties to consider these elements in addressing the climate crisis. ⁶² Furthermore, the HRC in its general comment has reaffirmed that climate change constitutes a threat to the present and future generations’ right to life with dignity, urging states to ensure that measures taken to preserve the right to life with dignity include protection against the impacts of climate change. ⁶³ It is therefore not surprising that victims of climate change and especially the vulnerable groups are turning to the international human rights bodies, including the HRC in their quest for climate justice. For more context on this, we will analyse below the HRC's decision in Daniel Billy v. Australia.

Prospects and challenges of climate litigation before HRC

While there is evidence that climate change is adversely affecting many African communities, climate litigation profile of the continent is still very low at the domestic level and non-existence at the international level (Suedi and Fall 2023). The success of Daniel Billy v. Australia has prompted an inquiry into the potential prospects and challenges of climate litigation before the HRC by victims and vulnerable groups in Africa. In this section, we highlight the potential challenges prospective applicants from Africa may face in their petitions before the HRC. This will serve as a practice note, providing relevant information to parties on the procedural and substantive challenges that may arise when litigating climate-related matters before the HRC. First, we consider the procedural issues that may create significant obstacles to African litigants.

Potential prospects of climate litigation by African litigants at the HRC

African litigants stand to benefit significantly from litigating climate change issues at the HRC. As we have noted above, the current small number of cases brought by African before the HRC is not a true reflection of the problematic human rights situation on the continent. By adopting the individual complaint procedure of the HRC, litigants will benefit from its decisions, which may have both direct and indirect impacts on the victims.

First, litigation at the HRC can be beneficial to African litigants by putting the spotlight on the climate change situation on Africa states, especially its disproportionate impacts on indigenous and vulnerable groups on the continent. This can potentially raise the level of awareness and increase public engagement at the national and international levels, and ramp up the needed pressure on the African state parties to implement timely and necessary adaptation measures. For instance, in Daniel Billy v. Australia, the level of public engagement generated by the case ultimately pressured the state party (Australia) to announce its decision to commit more financial resources for adaptation measure in the applicants’ Islands, even before the adoption of the HRC decisions. ¹²⁷

Secondly, litigation at the HRC can contribute to the clarification of the obligations of African states in relation to impacts of climate change on international human rights. In both Teitiota and Daniel Billy cases, the HRC emphasised that State Parties have human rights obligations to prevent the foreseeable impacts of climate change that threaten enjoyment of human rights on the people within their jurisdictions.

Furthermore, through its authority to direct state party to provide reparation to victims of human rights violations, the HRC can direct a state party to provide full reparation to the victims of climate change, and direct states to ensure participation of the affected communities in the decision-making process. While the decisions of the HRC are not formally binding, States Parties are required to give effect to its recommendations. ¹²⁸ Even though this obligation is not legally binding, States Parties are required to report on measures taken to implement HRC's decisions in good faith. ¹²⁹ Also, the HRC has monitoring mechanisms to follow up on States Parties’ implementation of its Views, including requesting state parties to provide information on steps taken to implement its decisions, and appointment of rapporteur to engage with states. ¹³⁰ In this regard, African litigants have a lot to benefit from pursuing climate-related claims before the HRC.

Conclusion

Despite the increasing impacts of climate change on the African continent, especially on indigenous and other vulnerable groups, only a few cases have been brought before domestic courts and none at the international level. This is a reflection of the challenges of access to justice in many African countries. This article has examined the contributions of the HRC to climate litigation with particular emphasis on its decision in Daniel Billy et al. v. Australia. The case is profoundly significant being the first individual-sponsored petition in which the human rights body has found a State liable for international human rights violations for failure to take sufficient, timely and necessary adaptation measures to address the impacts of climate change on vulnerable group. We argue that even though the African human rights system offers stronger protection for victim of climate change in Africa, litigants now have an additional international adjudicatory avenue in the HRC to seek justice against African State Parties to the ICCPR and its First Optional Protocol for violations of human rights in connection with climate change. However, African litigants face some potential substantive and procedural hurdles before the HRC. We have highlighted these obstacles and how they can be overcome.