Landmark barristers act for two Ugandan NGOs in…

Alex Goodman KC, Admas Habteslasie and Margherita Cornaglia, instructed by Sue Willman of King’s College Legal Clinic, represent Greenwatch and the Kisoro Batwa Community Initiative in their amicus curiae intervention before the African Court, in the matter of a request by the Pan African Lawyers Union for an advisory opinion on the obligations of states with respect to the climate change crisis.

The amicus curiae focuses on the relevance of forest protection and action against deforestation to state obligations with respect to climate change and is supported by extensive local expert evidence. The amicus further outlines the findings of the International Court of Justice, and regional human rights courts, encouraging the African Court to align its opinion to that of those courts.

The submissions focus around three principal areas:

Protecting and restoring forests is integral to States’ climate obligations because forests function as major carbon sinks, removing and storing atmospheric carbon dioxide in biomass and soils.
Forests sustain life and livelihoods: the account of the Batwa community presents an example of the nature and importance of the value of forests and forest protection in the context of Indigenous culture.
The destruction of forests and reduction in forest cover loss can threaten human rights by increasing vulnerability to slow and fast-onset natural disasters.

Consequently, safeguarding forests and forest biodiversity is not ancillary to climate action but a necessary means of securing durable carbon sinks and robust carbon dioxide removal. Forest protection reduces climate risks which are capable of threatening human rights and enhances the lives and livelihoods of forest communities. International climate law and biodiversity frameworks are aligned with this understanding of the interdependency of climate and biodiversity protection.

In light of those overarching submissions, the Interveners invite the Court to adopt an interpretation of state human rights obligations in the climate context which is aligned with international law and existing precedents and the international and regional level, and that is reflective of the interdependency between the protection of the climate and that of biodiverse ecosystems. The interveners thus invite the Court to find that the protection of the environment, ecosystems and the climate system is a precondition for the enjoyment of human rights, and that the adverse effects of climate change may significantly impair the enjoyment of human rights, including those rights guaranteed by the African Charter on Human and Peoples’ Rights.

With respect to state obligations to protect ecosystems and biodiversity, and particularly forests, the Interveners recall the ICJ’s findings that state obligations under human rights law must be interpreted consistently with obligations derived from other sources of law, including treaty law. They encourage the Court to concur with the ICJ’s findings in this respect, and to confirm that State human rights obligations under the African Charter to protect individuals and groups from adverse climate impacts include positive obligations to protect carbon sinks and reservoirs. Those obligations require States to exercise enhanced due diligence and rights-based governance of land use, and to ensure that domestic legal and regulatory frameworks for the protection of ecosystems and biodiversity are applied effectively in practice.

Finally, the amicus focuses centrally on rights owed specifically to indigenous communities, and on the importance of indigenous knowledge and culture to action against climate change.

The Interveners underline the need to avoid artificial separation of duties pertaining to Indigenous peoples and those pertaining to protection of the environment, which is illustrated by the case of the Batwa, where state action has ruptured the foundational relationship between the Batwa and the forests that they traditionally inhabit, with troubling consequences for the environment and the rights of the Batwa. The Batwa experience exemplifies how State action and inaction can jointly undermine Indigenous rights and environmental stewardship and illuminates the consequences of institutional indifference or blindness to the relationship between indigenous cultures such as the Batwa and protection of the environment.

Against that background, the Interveners invite the Court to affirm that states have positive obligations to recognise Indigenous stewardship, integrate traditional knowledge into climate policy and uphold sustainable development and intergenerational equity. These obligations, properly understood, inter alia require states to ensure that their evaluation and determination of environmental harm and climate-related decision-making takes full and appropriate account of traditional knowledge and the position of indigenous peoples, including by implementing appropriate consultative processes with indigenous groups that accord with those peoples’ custom and tradition. Similarly, the amicus underlines that states must integrate traditional knowledge into climate strategies. Failing to do so endangers states' compliance with their climate related obligations and risks undermining climate action, in circumstances where indigenous knowledge offers one of the strongest tools to ensure that human populations operate within planetary boundaries, in harmony with nature and in a manner that enhances climate resilience and mitigation.

Alex Goodman KC, Admas Habteslasie and Margherita Cornaglia, acted for Greenwatch and the Kisoro Batwa Community Initiative, instructed by Sue Willman of King’s College Legal Clinic.