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Chicago Journal of International Law

Abstract

This Article analyzes recent environmental law decisions of Africa’s fledgling international courts. In 2014, for example, the East African Court of Justice stopped the government of Tanzania from building a road across Serengeti National Park because of its potential adverse environmental impacts. Decisions like these have inaugurated a new era of enhanced environmental judicial protection in Africa. This expansion into environmental law decision-making by Africa’s international trade courts contrasts with other international courts that are designed to specialize on one issue area such as human rights or international trade, but not both. By contrast, Africa’s international courts are simultaneously pushing the boundaries of judicial enforcement not only of international environmental law, but also of international human rights. Three major developments account for the turn to and expansion towards international judicial environmentalism: First, the decisions of African governments to pursue mega-development projects such as the Serengeti superhighway, large extractive industry operations, or hydro-electric dams without regard to the environment or the interests of local populations. Second, the channeling of resistance against these mega-development projects through international courts by alliances of those directly affected by these mega-development projects at the grassroots level together with global environmental movements. Third, the repurposing of these international courts to begin enforcing environmental norms included in regional trade and human rights agreements as a result of the opportunity provided by the filing of environmental cases. The fact that NGOs and individuals have standing to bring cases to Africa’s international courts and governments remain committed to pursuing mega-development projects strongly suggests that the trend towards consolidating international judicial environmentalism may continue. Similar cases filed in domestic courts show the continuity and complementarity between national and international courts in environmental law cases. Ultimately, this Article observes that to the extent the cases in Africa’s international courts are filed only against States leaves a huge accountability gap. Private actors responsible for the same kind of environmental damage are not amenable to suit in Africa’s fledgling international courts. This accountability gap for private actors continues an unfortunate legacy that has degraded the environment in many third world countries, including those in Africa.

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