Human Rights and the Environment under African Union Law

Michael Addaney, Ademola Oluborode Jegede, Michael Addaney, Ademola Oluborode Jegede

• Publisher: Palgrave Macmillan
• Year: 2020
• ISBN:
  9783030465230
• Topic: Derecho
• Subtopic: Derecho internacional

This book brings together original and novel perspectives on major developments in human rights law and the environment in Africa. Focusing on African Union law, the book explores the core concepts and principles, theory and practice, accountability mechanisms and key issues challenging human rights law in the era of global environmental change. It, thus, extend the frontier of understanding in this fundamental area by building on existing scholarship on African human rights law and the protection of the environment, divulging concerns on redressing environmental and human rights protection issues in the context of economic growth and sustainable development. It further offers unique insight into the development, domestication and implementation challenges relating to human rights law and environmental governance in Africa.
This long overdue interdisciplinary exploration of human rights law and the environment from an African perspective will be an indispensable reference point for academics, policymakers, practitioners and advocates of international human rights and environmental law in particular and international law, environmental politics and philosophy, and African studies in general. It is clear that there is much to do, study and share on this timely subject in the African context.

Part INew Frontiers in Human Rights and Environment: Environmental Protection Under African Union Law

© The Author(s) 2020

M. Addaney, A. Oluborode Jegede (eds.)Human Rights and the Environment under African Union Lawhttps://doi.org/10.1007/978-3-030-46523-0_1

Begin Abstract

1. Human Rights, Regional Law and the Environment in Africa: Legal and Conceptual Foundations

Michael Addaney^{1, 2} , Chantelle Gloria Moyo³ and Thabang Ramakhula⁴

(1)

Research Institute of Environmental Law, Wuhan University, Wuhan, China

(2)

University of Energy and Natural Resources, Sunyani, Ghana

(3)

North-West University, Potchefstroom, South Africa

(4)

University of the Free State, Bloemfontein, South Africa

Michael Addaney (Corresponding author)

Email: [email protected]

End Abstract

1 Introduction

Scholarship on human rights and the environment has gained prominence over the last three decades as scholars, practitioners and advocates examine how these distinctive areas of law interact and reinforce each other. However, most existing scholarship focuses on the Global North, with limited attention given to the subject in the Global South, particularly Africa. This book attempts to offer original and novel perspectives to the discourse by focusing on the African region, especially regional environmental law and the African human rights system. What makes this edited collection different from other works is both its analytical framework that focuses on African Union Law as well as its geographical scope. The concept of an African Union Law or the African Union legal order originates from the efforts of African States to integrate economically and politically beginning from pre-independence Pan-Africanism.¹ This is symbolized by the formation of the Organisation of African Unity (OAU) on 25 May 1966 in Addis Ababa, Ethiopia, with 32 signatory governments. The OAU was succeeded by the African Union (AU) in 2002.² The establishment of the AU officially marked the beginning of continental legal order as different from the OAU, created through a Constitutive Act which is a recognized social pact and legal code that currently fortifies the continental legal order.³ This development implies that the African region currently has the prerequisite basis for a continent‑wide legal order.

In the area of human rights and the environment, the AU Constitutive Act has consolidated and advanced the framework for promoting and protecting human rights in Africa by giving it constitutional status, thereby making it binding on all member states. Since its formation, the AU has made significant progress in meeting its ambitious goal of political integration. For instance, the AU General Assembly commissioned the Kagame report which endorsed a number of institutional and legal reforms including the improvement of the effectiveness of the AU Court system, clarification of the legislative powers of the Pan-African Parliament and the speedy implementation of the AU continental passport.⁴ Similar to the legal and institutional design of the European Union (EU), the laws and institutions of the AU, a supranational organization is evolving progressively. This is not to say that there is no need for certain reforms.

As it is generally recognized that the AU legal order is in its infancy, the protection of the environment has been an essential part of African social, cultural and religious life for many generations.⁵ It is also an essential part of human rights protection in Africa. As observed by the African Commission on Human and Peoples’ Rights (African Commission), ‘collective rights, environmental rights, and economic and social rights are essential elements of human rights in Africa’.⁶ It is of significance that at the African regional level, environmental rights are recognized as explicit treaty norms, with normative harmony with other rights and corresponding obligations. However, Africa continues to be characterized by, among other problems, resource exploitation, water pollution, loss of biodiversity and continuous degradation of the environment,⁷ with the latter having negative effects on human rights.⁸ The emergence of climate change, globalization and increased urbanization are key factors contributing to Africa’s environmental challenges.⁹ Although Africa depends on the extraction of natural resources to foster economic growth, achieve sustainable development and reduce poverty, extractive activities also contribute significantly to environmental damage on the continent. As observed by the African Commission, ‘the increasing rate of the destruction of the African environment and ecosystem by extractive industrial activities with impunity’ is an issue of concern.¹⁰ Consequently, the African Commission has elevated attention to the impact of extractive activities on environmental protection and environmental rights with the establishment of the Working Group on Extractive Industries, Environment and Human Rights Violations.¹¹ In both national and regional priorities, concerns relating to the environment rank highly,¹² with the AU having developed various policy responses aimed at addressing Africa’s environmental concerns.¹³

2 Integrating Human Rights in Regional Environmental Governance in Africa

The connection between human rights and the environment emerges in several human rights approaches to environmental issues, which contain the extension and sometimes, re-interpretation of existing human rights, dependence on procedural rights and the conceptualization of the right to environment.¹⁴ To successfully achieve environmental conservation and protection, there must be a trend of innovative and refined legal analysis of human rights. Questions on whether human rights are an appropriate tool in addressing contemporary environmental concerns are pertinent for a number of reasons. Firstly, current developments in treaty law tend to recognize the entitlements of individuals, communities and groups to be a part of environmental decision-making processes as well as access to justice when these rights have been violated in terms of human rights.¹⁵ This phenomenon is popularly known as the procedualization of human rights because of its individual and social empowerment to participate in a deliberate process of decision-making and to have rights of recourse against environmental harm.¹⁶ Secondly, the reason behind revisiting the characteristics of environmental rights is substantive. Current practice prominently features socio-cultural contexts which show that it is a sine qua non for the full enjoyment of human rights by individuals, communities or particular groups of people.¹⁷ A good example of this trend can be found in the UN Declaration on the Rights of Indigenous Peoples.¹⁸ Furthermore, the African Charter on Human and Peoples’ Rights proclaims, in Article 24, the right of African peoples to ‘a general satisfactory environment favourable to their development’.¹⁹

The Intersection of Human Rights and the Environment in Africa

Human rights theorists aver that since the reason for environmental conservation and protection is the enhancement of quality of human life, it falls squarely within the bounds of human rights.²⁰ On the other hand, environmental lawyers argue that a human-centered approach to environmental concerns runs the risk of reducing environmental values to mere roles that they play in improving the quality of life of human beings to the exclusion of everything else.²¹ According to this view, the protection of the environment would be inspired by what human beings can benefit out of it thereby sacrificing other aspects such as ecological growth, restoration and function. A critical look at the nature and content of environmental right...