Dignity in the African Court on Human and Peoples’ Rights
By Natalia Urzola
Dignity Now! is seeking to file an amicus brief in what is sure to be a milestone in climate litigation: the African Court on Human and People’s Rights’ Advisory Opinion regarding States’ obligations in the context of the climate crisis. The petition was filed last year by the Pan African Lawyers Union (PALU). The petition raises critical human rights questions and provides detailed accounts of the human rights impacts of the climate crisis in the different regions of Africa. For instance, water shortages contribute to malnutrition and food insecurity, illnesses and disease, interruptions in education and employment, loss of culture, and so on. All of these contribute to a person’s sense of self-esteem and dignity, diminish their ability to live dignified lives, and make them more vulnerable to exploitation and further violations of their dignity.
Notably, the petition describes how the impacts of climate change violate various African human rights instruments, including the African Charter on Human and Peoples’ Rights, the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa, the African Charter on the Rights and Welfare of the Child, as well as other applicable international human rights treaties.
Particularly, a healthy environment, a prerequisite to the enjoyment of all human rights, is at the heart of the African legal framework. The African Charter was the first regional treaty to recognize that all peoples have a right to a general satisfactory environment favorable to their development (art. 24). This right imposes obligations on states to take reasonable measures to prevent environmental degradation in the face of the climate crisis. The recent Advisory Opinions by the International Tribunal for the Law of the Sea, the Inter-American Court of Human Rights, and the International Court of Justice set out existing States’ obligations amid the climate crisis through the interpretation of international law, international and regional human rights law, and the law of the sea. Against this backdrop, the current Advisory Opinion before the African Court is expected to further delineate African States’ obligations.
Dignity in the African Human Rights System
The African legal framework already recognizes that climate change impacts are more than mere violations of specific rights protected under African and international human rights law. Indeed, the African system sees them as violations of human dignity: droughts, fires, floods, and even simple irregular weather patterns caused by climate change threaten people’s ability to farm, secure income, live in decent homes, obtain education, maintain their community relations and their ties to family, and in general to control the course of their lives. In short, climate impacts threaten or destroy peoples’ ability to live with dignity and states have absolute positive and negative obligations to protect people from violations of their dignity.
Dignity has been an integral part of African human rights law for more than 60 years and is explicitly embraced in Article 5 of the African Charter of Human and People’s Rights which asserts that every individual has the right to the respect of the dignity that is inherent in every human being. The constitutional law of the nations of Africa echoes the regional commitment to human dignity as a foundational value and as a right. The Constitutions of South Africa and Kenya are models of dignity’s primacy in the structure of rights, and it is recognized as well in the constitutions of most other African states.[1]
Moreover, continental and national caselaw treats dignity is the “soul” and the “lodestar” of human rights protection and that it informs the content of all personal rights. Throughout the continent, human dignity is recognized as the essential value of humanity, and the foundation of human rights law.
Dignity and human rights law in the African Court’s Advisory Opinion
Dignity rights transcend familiar classifications of rights. They are absolute and unlimited under African regional and national law. They are both positive and negative, requiring states to avoid violations of rights (e.g. not allowing exploitation of natural resources that have climate impacts that threaten the right to live with dignity, not impeding the exercise of civil rights relating to climate change) and to affirmatively protect dignity rights (e.g. by assuring adequate emergency housing, installing flood and fire protection mechanisms). They are both substantive (involving the right to health, to education, to income, to family and culture, etc.) and procedural, involving the right to information, participation and access to justice. They involve not only state action but also state obligations to protect people from violations caused by others. Adopting a dignity rights framework here is critical because it could help coalesce dignity law for African human rights law and provide guidance for future cases even beyond climate, including those involving discrimination, criminal procedural rights, electoral rights, among others.
This dignity framework is essential for the Court for at least five reasons:
1. African regional and national law recognizes that human and people’s rights are fundamentally about protecting every person’s equal right to live with dignity and to be treated by others with dignity.
2. People experience human rights violations as threats to their inherent and equal dignity – their most valuable asset.
3. Climate change threatens the full range of human rights, and a dignity law framework reflects how climate impacts rights in indivisible, inter-dependent, and inter-related ways.
4. Dignity law provides a framework for assessing state obligations with respect to climate change.
5. Dignity law has unique attributes that are critical in the context of the climate crisis.
Hence, the present request for an Advisory Opinion could serve as a model for framing the unique place of dignity in human rights law in Africa and beyond, and in the context of climate change and otherwise. This would position the African Court as a crucial pioneer in knowledge production regarding the climate crisis and human rights generally.
Elements of a Dignity Framework for Climate Change:
Africa’s treatment of dignity as the soul and lodestar of the human rights framework enables a distinct understanding of the climate crisis. A dignity framework for state obligations amid the climate crisis could serve as a blueprint for strengthening the nexus between dignity rights and human rights the world over. Some of the elements that could make up for a dignity framework for climate change based on Africa’s legal scaffolding are:
· All individuals have the right, based in their human dignity, to live with dignity, including indivisible rights relating to shelter, health care, education, income, and other fundamental rights. States are obligated to take affirmative and/or negative steps to protect dignity rights of all people. They have additional obligations to protect the dignity of people in vulnerable circumstances (whether by age, gender, ability, poverty, or otherwise).
· All individuals have the right, based in their human dignity, to live free from humiliation, discrimination, exploitation and the like and states have the obligation to protect individuals from such harms, whether caused intentionally or not, and whether caused by state or private action or omission.
· The state obligation to protect human dignity is absolute and it cannot be compromised by other state interests or needs.
Conclusion
The Court is expected to issue its Advisory Opinion in the coming months. We hope the Court will use a dignity rights framework in addressing the questions, given the primacy of human dignity in the African human rights regime. A dignity framework is critical to assess the obligations of states with respect to the climate crisis and could help identify and define states’ obligations to protect climate-impacted human rights taking into consideration context-based realities. A dignity framework could maximize the ability of people throughout the Continent (and beyond) to live with dignity and to flourish, as is compelled by African human rights regional and constitutional law and aligned with global human rights law.
[1] The Constitute Project lists the following African countries’ constitutions as including dignity: Angola, Benin, Burkina Faso, Burundi, Cape Verde, Central African Republic, Chad, Comoros, Congo, Cote d’Ivoire, Egypt, Equatorial Guinea, Eritrea, Eswatini, Ethiopia, Gabon, Gambia, Ghana, Guinea-Bissau, Kenya, Lesotho, Madagascar, Malawi, Mali, Mauritania, Morocco, Mozambique, Namibia, Niger, Nigeria, Rwanda, São Tome & Principe, Seychelles, Sierra Leone, Solomon Islands, Somalia, South Africa, South Sudan, Sudan, Tanzania, Togo, Tunisia, Uganda, Zambia, and Zimbabwe). Only these countries do not include dignity in their constitutions: Algeria, Botswana, Cameroon, Djibouti, DR Congo, Gabon, Guinea, Liberia, Libya, Mauritius, and Senegal.