The AfCHPR’s Opportunity to Define Corporate Duties in the Climate Crisis
By Valerio Sinaj*
Introduction
On May 2, 2025, the African Court on Human and Peoples’ Rights (AfCHPR) received a formal request for an Advisory Opinion on the human rights obligations of African States in relation to the climate change crisis. The request seeks to clarify the legal foundations and scope of the human rights that are affected by the climate emergency. The initiative comes from a coalition of African NGOs, headed by the Pan African Lawyers Union (PALU), which filed a significant petition seeking an advisory opinion on States’ human rights obligations in the context of climate change.
The timing of the request is significant: it follows the advisory opinion issued by the International Tribunal for the Law of the Sea (ITLOS), and the fresh advisory opinions issued by the Inter-American Court of Human Rights (IACtHR) on July 3rd 2025, and by the International Court of Justice (ICJ) on July 23rd 2025, which both contribute to constitute new ground towards climate justice in international law.
The petition begins by providing an in-depth analysis of how the rights contained in the African Charter are currently threatened by climate change and by the (in)action of the African States within the African Union (AU).
Despite accounting for only 4% of global CO₂ emissions, Africa remains one of the most climate-vulnerable continents—and is home to the world’s youngest population. The petition asks the Court to: affirm that States must protect the rights to life, health, food, water, and a clean environment; define standards for adaptation, resilience, loss, and damage; clarify corporate liability for environmental harm; and enshrine reparations and intergenerational equity.
Our focus is not only on the historical moment of the request submitted to the Court and its thematic scope, but also on its potential to advance corporate responsibility/accountability for human rights violations and climate change particularly in light of the unique content of the African Charter, in particular given that Articles 21 and 24 establish a framework within which the right to a healthy environment and the exploitation of environmental resources by companies can be read in conjunction, opening the possibility of holding them directly accountable.
The Petition
The request submitted by PALU, the African Climate Platform, and other African civil society organizations —including Environmental Lawyers Collective for Africa, Natural Justice, and Resilient40— demands the Court to clarify the climate-related human rights obligations of African States, particularly in relation to the climate emergency.
It seeks interpretation of both customary and treaty law, including duties toward present and future generations and vulnerable populations. The Request, also, addresses State responsibilities in regulating corporate actors, ensuring fair and transparent climate transitions, securing compensation for loss and damage, and advocating for climate justice on the international stage. Additionally, it highlights the importance of applying the duty of care principle to both States and potentially corporations. Next, the request emphasizes that Art. 4(1) of the Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human and Peoples’ Rights, along with the Article 82 of the Rules of the African Court on Human and Peoples’ Rights, allow African Union-recognized organizations to submit requests for advisory opinions to the Court.
The petition highlights that the abovementioned sources allow the AfCHPR to rely on any relevant legal instrument when delivering advisory opinions. These include regional and international environmental and human rights treaties, including the Paris Agreement and the African Charter on the Rights and Welfare of the Child, among others. Once this procedural foundation is established, the focus shifts to the core legal questions regarding State duties in the climate crisis.
This marks the first occasion an application of this nature - firmly rooted in the African Charter - directly engages the climate crisis at this high-level court. The Court is called upon to articulate and clarify the full scope of State duties under crucial provisions, including the right to a sustainable environment (Article 24), the right to life (Article 4), the right to health (Article 16), and the right to development (Article 22).
Furthermore, the request concerns whether the Court has the authority to interpret and lay down relevant customary and treaty law as it relates to State parties’ obligations and duties in responding to climate change.
Moreover, the Court is then asked to consider related issues including:
1. Clarifying the specific obligations of States under the African Charter to protect the rights of individuals and peoples—across past, present, and future generations—affected by climate change.
2. Determining whether States have positive duties to protect vulnerable groups, such as Indigenous peoples, women, children, the elderly, and people with disabilities, from climate-related harms.
Before analyzing the possible outcomes of a potential advisory opinion, we briefly consider that, although the requirements of legal standing and admissibility of the petition may be challenging to satisfy, it is highly probable to be conceded. To be admissible, according to art. 4 of the Protocol to the African Charter on Human And Peoples' Rights on the Establishment of an African Court on Human and Peoples' Rights, an advisory opinion has to be preceded by a formal request of many actors, among which “any African Organization recognized by OAU”. A non-governmental organization must meet three conditions cumulatively to be considered ‘African’: it must be registered in one of the Member States of the African Union, have its structures in the sub-region, region, or continent, and extend its activities beyond the national borders of the country in which it is registered. Also, as the African court has already explained in the past, any organization should therefore be recognized by the African Union through its Executive Council or sign a Memorandum of Understanding with the Union.
In confirmation of the above, two requests for advisory opinions submitted by PALU successfully led the Court to issue opinions in 2020 and 2021, respectively. This provides strong grounds for a positive view of PALU’s locus standi, given its legal status and its nature as a qualified organisation.
With the question of admissibility addressed, the petition turns from procedural considerations to examining how the Court might define and enforce State duties toward, and direct accountability of, non-State actors—particularly multinational corporations—in the climate and human rights context.
Accountability for third parties
After having considered procedural prerequisites and general State duties, we are now going to focus onthe part of the request that addresses the obligations of State Parties regarding non-State actors and multinational corporations, and their possible direct accountability (par.173), within the African human rights framework. This gives the Court a key opportunity to advance legal interpretation in this area, especially given the rise in lawsuits against multinationals both within African countries and in the so-called Global North for their conduct in Africa.
The Court, if accepting jurisdiction, must consider the duties of States to regulate and hold accountable third parties, including multinational corporations and non-State actors, in line with international climate and human rights obligations, and to clarify the extent of States’ obligations to engage in international cooperation—particularly with major historical emitters—to keep global warming below 1.5°C and protect current and future generations in Africa.
The African request is unique in terms of its regional scope, grounded in an Afrocentric legal framework and articulated through the language of the African Charter, which explicitly guarantees both individual and collective rights, including the right to a satisfactory environment (Article 24) - a right regarded as fundamental, as it underpins the effective enjoyment of all other rights.
Furthermore, the emphasis placed on Article 21 of the Charter is particularly noteworthy. Paragraph 5 of art (21) States, “The States Parties to this Charter undertake to eliminate all forms of foreign economic exploitation, especially that which is practiced by international monopolies, in order to enable the people of each country to benefit fully from the advantages derived from their own national resources.” This principle is directly invoked in the formal request submitted by PALU and other civil society members, who call upon the Court to clarify the responsibilities of African States regarding violations committed by third parties—specifically international monopolies and multinational corporations—operating within their jurisdictions.
By moving from the State’s overarching duty to protect rights to the specific language of Articles 21 and 24, the petition builds the legal bridge needed to link environmental stewardship with corporate regulation.
In addition, another important legal ground has been given in 2017, when the African Commission on Human and People’s Rights has released its “State Reporting Guidelines and Principle on Articles 21 and 24 of the African Charter relating to extractive industries, human rights and the environment” in which, apart from the obligations of States, the Commission has also provided several key provisions regarding obligations (both negative and positive) of companies.
In particular, the report underlines that corporations (especially MNCs) have, according to the law, obligations towards rights holders, relying also to article 27 of the African Charter, which lays down the obligation to exercise rights “with due regard to the rights of others”, highlighting that “there is an even stronger moral and legal basis for attributing these obligations to corporations and companies”. In addition, the report puts its focus on positive obligations certain companies have to bear, arising in particular from art. 21 and 24 of the African Charter, such as fiscal and transparency requirements, but also deriving from social and economic impacts of their operations, stating, once again, that these are not just a matter of social responsibility, but legal obligations of companies.
Possible aftermaths towards third actors
Despite the non-binding nature of advisory opinions, they play an important role in the interpretation and clarification of the legal obligations of States in Africa under the human rights law framework. The advisory opinions of the AfCHPR can shape legal developments in the region and aid in the advancement of public policy ambition which could potentially influence courts around the world.
As it has been established in the Carbon Majors report multinational corporations are among the leading contributors to harmful emissions. Yet, they often escape accountability due to the lack of clear, binding and enforceable provisions concerning corporate liability for climate change related harm. Thus, the petitioners argue that States are obligated under Article 21.5 of the Charter, as well as under broader international law, to regulate and monitor the activities of corporations drawing in particular on the duty of care principle.
The advisory opinion request refers explicitly to the principle of due diligence, developed in international human rights law and soft law instruments - the UN Guiding Principles on Business and Human Rights, OECD Guidelines, and the ongoing negotiations for a Binding Treaty on Business and Human Rights.
The issue of corporate responsibility in the context of climate change has already received considerable attention in other regional courts, such as the advisory opinion requested from the IACtHR. However, in contrast to the IACtHR, the current petition before the AfCHPR is grounded in an explicit legal basis - art 21(5) of the African Charter - which strengthens the normative foundation of the request. In this context, the petitioners do not merely ask “What responsibilities, if any, do African States have in relation to third parties, including international monopolies, multinational corporations and non-State actors operating on the continent, to ensure that international and regional treaties and laws on climate change are respected, protected, promoted and implemented?”, they go further by requesting the Court to consider , “the application of the duty of care principle for States and potentially corporations in addressing climate change impacts”. This extends the inquiry beyond the conventional perimeter of application of international law by proposing a direct legal accountability framework for corporate actors.
Thanks to this approach, the petition expands the scope of the inquiry, from the indirect regulation of corporations through State action, to the possibility of direct, enforceable duties on corporate actors themselves.
As we argued above, the State Report Guidelines and Principles, even though a soft law instrument, could be a solid ground in shaping business accountability from the point of view of the Court, but, alone, the Report is not sufficient. In this framework, the recent AfCHPR case-law could help to reinforce the path and to give concrete actions towards corporations. Notably, in the landmark Trafigura Case, the Court found, not only that Ivory Coast had breached multiple human rights obligations in the context of corporate activities, but also that Trafigura had to respect international law obligations, given its multinational company nature.In addition, it specifically underpins the responsibilities of corporations to respect human rights by reference to the United Nations Guiding Principles on Business and Human Rights and its Principle 11 on corporate responsibility.
The petition has the momentum to galvanise international legal developments in the context of addressing corporate responsibility directly, rather than solely through the lens of State obligations.
Following the recent judicial developments throughout the world - such as Milieudefensie v. Royal Dutch Shell, Lliuya v. RWE and the Council of Europe Convention on the Protection of the Environment through Criminal Law - around corporate responsibility in relation to climate change, this advisory opinion could play a pivotal role in clarifying this intersection especially in the context of Africa, which is arguably , the most “business-exploited” continent in the world.
While it remains uncertain whether the Court will ultimately decide to issue an advisory opinion on the questions raised, after the confirmation given by the ICJ Advisory Opinion on the Obligations of States in respect of Climate Change regarding the duty to make reparation, the Court has a concrete opportunity to contribute meaningfully to the development of international law.
By recognising the clear and enforceable obligations of both States and corporations in addressing the climate crisis, and affirming that business enterprises bear an independent duty to respect human rights, including the obligation to significantly reduce greenhouse gas emissions that cause harm to individuals, the Court could bring further the struggle for climate accountability.
*Valerio Sinaj is a PhD candidate in International Environmental Law and Human Rights at IUSS Pavia and Università di Roma Unitelma Sapienza, and Visiting Research Fellow at Utrecht University. His research is focused on the standards needed to consider an individual as a victim of climate change, and how to link it with the climate migrants, by addressing States’ responsibilities and procedural requirements.