INTRODUCTION
In response to the challenge of internal displacement in Africa, the African Union Assembly of Heads of State and Government (AU Assembly) adopted the Convention on the Protection and Assistance of Internally Displaced Persons in October 2009 (the Convention)Footnote 1 as a regional legal framework for addressing the problem.Footnote 2 The Convention recognizes several root causes of internal displacement, including conflict, harmful practices, disaster and development-induced displacement (DID). Within the context of DID, this article focuses on climate-based DID (CBDID), which is the forced removal of individuals and communities from their places of habitual residence to make way for the pursuit of sustainable development projects intended for the furtherance of climate change mitigation and adaptation measures. These measures are aligned with the UN Framework Convention on Climate Change (Framework Convention), which directs states to achieve “stabilization of greenhouse gas concentrations in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate system”.Footnote 3
In implementing this objective, the Kyoto ProtocolFootnote 4 establishes certain flexibility measures by which developed states can meet their obligations. One of these measures is the Clean Development Mechanism (CDM), which aims to promote clean and sustainable development in developing countries. Through CDMs, developed states can offset carbon emissions in developing states by purchasing certified emission credits from emission reduction projects; developing states can use the proceeds to advance economic growth. With a similar objective to the CDM, projects under the UN Reduction of Emissions from Deforestation and Forest Degradation programme (REDD+) are geared towards reducing carbon emissions by increasing forest carbon sinks.Footnote 5 However, these projects have resulted in displacement and restricted access to land in developing countries, many of which are in the global South, including in Africa.Footnote 6 In pursuing the benefit of these projects, African states have often leaned in favour of development project imperatives at the cost of concern for the rights of displaced persons.
The Convention requires states to protect the rights of internally displaced persons (IDPs), including populations displaced by climate change.Footnote 7 Although the Convention does not specifically articulate what needs to be done to protect persons displaced by climate change, article 10(1) requires states “as much as possible” to prevent CBDID. However, neither the Convention nor the Model Law for the Implementation of the Convention,Footnote 8 adopted by the AU Assembly in January 2018, sets a yardstick for what “as much as possible” entails. Furthermore, the Convention does not describe the nature of states’ obligation in respect of acts by private actors and does not contain guidelines on how states should regulate private actors implicated in CBDID. Literature on internal displacement in Africa largely focuses on conflict, overlooking the issue of DID, particularly CBDID.Footnote 9
While article 10(1) seeks to prevent CBDID, it is not clear what states should do to ensure that this obligation is met. This article argues that an understanding of the obligation in this provision should be considered in the context of the Convention's objective, which is to prevent arbitrary displacement. While the Convention does not place an absolute prohibition on displacement, it categorically prohibits arbitrary displacement. This article discusses the constitutive elements of arbitrary displacement under the Convention within the context of CBDID. Before embarking on the discussion, it considers some trends in CBDID in Africa, after which a systematic exposition is made of the norms pertaining to the legal protection of climate-based development-induced displaced persons (CBDIDPs) in Africa.
TRENDS IN CLIMATE-BASED DEVELOPMENT-INDUCED DISPLACEMENT IN AFRICA
Since the 20th century, large scale development projects have been considered essential to achieve Africa's industrialization. However, these projects have often come at significant human cost, exemplified by inadequate compensation, insufficient consultation and improper resettlement. Across Africa, developmental projects have significantly impacted on the livelihood capacities of local communities and occasioned population displacement. Examples abound. In Mozambique, over 2,000 families were displaced between 2009 and 2014 in the Tete province for coal extraction; although resettlement was planned, farmland provided in certain instances was not suitable for agricultural production.Footnote 10 More than 1,000 families were displaced for copper mining in the north-western province of Zambia without adequate compensation; this particularly affected women.Footnote 11 In Egypt, over 2,000 people were displaced without proper compensation to make way for the New Suez Canal project in 2014.Footnote 12 In Angola, about 30,000 people were displaced between 2002 and 2006 for housing projects.Footnote 13 More than 10,000 people were displaced from the Bole Bubula area in Ethiopia to make way for the Addis Ababa airport in 2002.Footnote 14
With the emergence of climate change and the need to reverse its negative impact, states are increasingly embarking on climate-based development projects. These projects can also occasion displacement. Through the World Bank's Forest Carbon Partnership Facility, the REDD+ programme and other private sector partnerships, projects on afforestation, renewable energy and forest conservation have become imperatives in adapting and mitigating climate change impacts.Footnote 15 Regrettably, they have also come at a human cost, as issues of inadequate notice, cosmetic consultation, improper compensation and resettlements have characterized their implementation. In Madagascar and Tanzania, for instance, REDD+ projects have significantly impacted the livelihood capacities of local communities, not least in relation to access to agricultural land and natural resources.Footnote 16 In the Democratic Republic of the Congo (DRC), one of the arguments adduced in support of the Inga Dam III is its potential to offset carbon emissions.Footnote 17 However, displaced communities from the construction of the Inga Dams I and II in the 1970s are yet to be properly compensated after more than four decades.Footnote 18 Across Africa, cases of CBDID have followed similar patterns.
The case of the Sengwer peoples in Kenya illustrates this challenge. In 2007, the Kenyan government initiated a Natural Resource Management Programme (NRMP) with technical assistance for REDD+ readiness from the World Bank.Footnote 19 The aim of the project was to enhance carbon sinks through forest conservation and to prevent forest degradation and depletion of forest resources for the promotion of economic activities in the country.Footnote 20 Given that it was to be implemented on indigenous peoples’ territories, an Indigenous Peoples’ Planning Framework was developed with the aim of fostering the participation of “forest and resettlement related committees, working groups and other decision making bodies”.Footnote 21 In contravention of this framework and a court order prohibiting displacement,Footnote 22 government authorities torched several homes belonging to the Sengwer indigenous peoples in the Embobut forest in furtherance of the NRMP.Footnote 23
In the DRC, CDM projects have had similar impacts, particularly on the Batwa (“Pygmies”). The Ibi-Batéké Carbon Sink Plantation (IBCSP) is a case in point.Footnote 24 Following the DRC's ratification of the Kyoto Protocol in 2005, the IBCSP was initiated as a CDM project to promote reforestation, contribute to fuel-wood supplies to Kinshasa and enhance carbon sinks “capable of sequestering around 2.5 million of tons of CO2 eq [carbon dioxide equivalent] over 30 years”.Footnote 25 For CDM projects to be acceptable within the context of the Kyoto Protocol, proponents of the project must develop a descriptive document that details the project's socio-economic and environmental impact.Footnote 26 Following an examination of this document, the designated national authority issues a “letter of no objection” that reflects the government's endorsement of the project.Footnote 27 While the proponents of the CDM project obtained the required letter, the consultation process with the Batwa on the Batéké plateau was significantly flawed.Footnote 28 Proponents indicated that “an extensive consultation was carried out with the local populations, local institutions and non-governmental organisations”.Footnote 29 However, evaluation conducted by civil society with the aim of assessing the involvement of indigenous populations in the project revealed that the Batwa were not involved in the preparation of the project.Footnote 30 Not only were Batwa lands plundered, CDM activities also resulted in land expropriation.Footnote 31 As with the Batwa, forest communities in the Mai-Ndombe province in the DRC have also been poorly consulted. In a report by the Rights and Resources Initiative, it was observed that most of the consultative processes take place in Kinshasa, limiting the effective participation of these rural communities.Footnote 32
In Uganda, the case of the UK-based New Forests Company reflects the complicity of businesses in this form of displacement. In 2005, the New Forests Company was granted a licence to establish three timber plantations in the Ugandan districts of Bugiri, Kiboga and Mubende.Footnote 33 This project was geared towards planting trees, selling timber and gaining carbon credits. In 2011, more than 20,000 people were displaced for the project without adequate compensation.Footnote 34 While the New Forest Company claimed in its project design document form submitted to UN-CDM that the evictions were voluntary,Footnote 35 the accounts of the local populations, speaking of physical violence and destruction of property, were contrary to this claim.Footnote 36
By requiring states to protect persons displaced by climate change, article 5(4) of the Convention seeks to address these situations. Article 5(4) represents the first binding legal obligation for states to protect persons displaced by climate change. Although it does not specify the nature of protection, the implication of this provision, read in conjunction with article 10, is that states must ensure that a balance is struck between climate-based development imperatives and the rights of CBDIDPs. However, article 10 of the Convention does not elaborate on how this balance should be struck. Placing the provision in the context of international law, this article now aims to advance clarity on the issue.
ARTICLE 10(1) OF THE CONVENTION
Under article 10(1) of the Convention, African states are required “as much as possible” to prevent CBDID. A literal meaning of the termFootnote 37 suggests that states should “to the greatest measure, or in the largest amount possible”,Footnote 38 prevent this form of displacement. However, as the Convention does not define the phrase “as much as possible”, it is not clear by what standard the “greatest measure” should be assessed, or by what yardstick the “largest amount possible” should be considered. A combined reading of article 10(1) with articles 3(1)(a), 4(1) and 4(4) of the Convention indicates that states are required to ensure that CBDID is not arbitrary. The authors contend that this obligation requires states to ensure that the due process of law is followed.Footnote 39 In the Case Concerning Elettronica Sicula, the International Court of Justice established a threshold for understanding the meaning of “arbitrary”, stating that an act will be arbitrary where there is “a wilful disregard of due process of law”.Footnote 40 On this basis, the arbitrary nature of an act must be measured in the context of compliance with the due process of law.
The concept of due process of law is intrinsically woven into the idea of natural justice. Due process involves an expectation that a state will act legitimately.Footnote 41 Within the context of internal displacement, due process contemplates the minimum procedural requirements that must be followed to prevent arbitrary displacement.Footnote 42 But what are these due process requirements in the determination of arbitrary or non-arbitrary CBDID? These requirements are discussed in the next sections, with reference to articles 10(2) and 10(3) of the Convention.
Prior-impact assessments
Article 10(3) of the Convention instructs states to carry out socio-economic and environmental impact assessments before the implementation of projects. The rationale for article 10(3) in the context of the least restrictive means element is that, in order to understand the “restrictive” implications of a project on rights, it is important to conduct prior socio-economic and environmental impact assessments.Footnote 43
The socio-economic impacts of a project are the likely consequences that a project may have on the social ordering and the economic sustenance of persons likely to be displaced. From an interdisciplinary perspective, two categories of impact are contemplated, namely social impact and economic impact. Vanclay describes social impact as changes in lifestyle, cultural and political systems, well-being, property rights, environment and aspirations.Footnote 44 In the Guidelines and Principles for Social Impact Assessment developed by the Inter-Organisational Committee on Guidelines and Principles for Social Impact Assessment, social impacts are described as “the consequences to human populations of any public or private actions that alter the ways in which people live, work, play, relate to one another, organize to meet their needs and generally cope as members of society”.Footnote 45
While these definitions offer a basis on which to understand social impact, the social variables contemplated by these definitions such as play, aspirations, relationships and lifestyle remain difficult to quantify. Indeed, Sairinen's assertion that “social impacts are … perceived differently by different people through socially-mediated understandings of what is ‘normal’ or ‘natural’ or ‘to be expected’ or even ‘acceptable”’,Footnote 46 is a reminder that assessing this form of impact can be daunting.
Economic impacts are more definite in that they relate to the material and financial resources for sustaining livelihood capacities. However, there are no set benchmark for assessing the economic impacts of CBDID specifically. This gap is evident in light of the fact that literature on the impacts of CBDID from an economic perspective is scanty.
In determining the benchmark against which the social and economic impacts of CBDID should be assessed in light of article 10(3), reference should be made to the social variables in consultation with persons likely to be displaced and also to the socio-economic rights obligations of states. The authors contend that socio-economic rights (such as the rights to an adequate standard of living,Footnote 47 work,Footnote 48 health,Footnote 49 development,Footnote 50 education,Footnote 51 cultureFootnote 52 and social security)Footnote 53 should be taken into consideration in conducting socio-economic impact assessments under article 10(3) of the Convention. This argument derives from the fact that there is an obligation on states to respect the human rights obligations that necessarily flow from their obligation to prevent internal displacement.Footnote 54
The need for an environmental impact assessment (EIA) before a development project is implemented derives from the fact that harming the environment can affect the livelihood capacities of those dependent on it. Moreover, in light of the right to the environment contained in soft law standards and specifically recognized in the African Charter on Human and Peoples’ Rights (African Charter), the need for states to conduct EIAs before implementing development projects resonates. Article 24 of the African Charter requires that “all peoples shall have the right to a general satisfactory environment”. In SERAP,Footnote 55 the Economic Community of West African States (ECOWAS) Court of Justice noted that this provision must be read in line with article 1 of the African Charter, which obliges states to take “legislative or other measures” to realize the rights in the African Charter. Other measures, in the context of this provision, contemplate a wide range of means for the implementation of the obligations in the African Charter. In Ogoniland, the African Commission on Human and Peoples’ Rights (African Commission) emphasized that “[t]he right to a general satisfactory environment, as guaranteed under article 24 of the African Charter … requires the state to take … measures to prevent pollution and ecological degradation”.Footnote 56 Since the primary objective of carrying out an EIA is to evaluate the environmental consequences of proposed projects, it is an important measure in preventing pollution and ecological degradation and, as such, states must ensure that it is carried out.
Information
Article 10(2) of the Convention requires that, to prevent arbitrary CBDID, persons likely to be displaced must be fully informed about the project.Footnote 57 Article 10(2) of the Convention emphasizes this requirement. CBDIDPs should actively participate in the exploration of feasible alternatives to the climate change adaptation and mitigation projects that are likely to displace them. As an enabling right,Footnote 58 information serves as a basis for empowering persons likely to be displaced, which is a prerequisite for legitimizing the process of consultation and reaching informed decisions.
According to the Model Law on Access to Information for Africa (ATI Model Law), which “serves as a benchmark for measuring compliance with regional and international human rights standards”,Footnote 59 information entails “[a]ny original or copy of documentary material irrespective of its physical characteristics … and any other tangible or intangible material, regardless of the form … in which it is held”.Footnote 60 Article 7 of the ATI Model Law requires that information must be provided relating to the policies and operations of public and private bodies, and those setting out processes of engagement with the public. In the prevention of arbitrary CBDID, any vital piece of material relating to the project and, significantly, its impact on persons likely to be displaced must be provided.Footnote 61
Consultation
Another key due process requirement for the prevention of arbitrary CBDID is that states must ensure that consultation is conducted with persons likely to be displaced before the implementation of climate-based development projects.Footnote 62 In development practice, consultation is often regarded as “the weakest form of participation in decision-making”.Footnote 63 Cornwall observes that consultation “is widely used, north and south, as a means of legitimating already-taken decisions”.Footnote 64 Consultation, as a weak form of participation, is conceived as a process through which CBDIDPs are merely to give opinions or express their feelings on the climate-based projects “but are not involved in decision-making or implementation of projects”.Footnote 65 However, as a due process requirement in avoiding arbitrary CBDID, a relevant question that needs answering is whether consultation should be regarded as a weak form of participation or as a means of legitimizing decisions that have already been made.
An inherent danger in conceiving consultation as a means of legitimizing decisions that have already been made is that it reinforces the rhetoric that persons likely to be displaced are necessary sacrifices for the realization of development. Regarding consultation as a weak form of participation defeats the object and purpose of the Convention. This approach should be discarded.
In understanding its object and purpose, it is relevant to consider specific provisions of the Convention, including its preamble, which is “the natural place in which to look for, an express or explicit general statement of the treaty's objects and purposes”.Footnote 66 Paragraph 3 of the preamble emphasizes the commitment of states to “providing durable solutions” as an underlying reason for the creation of the Convention. Under article 11(1), states are obligated to “seek lasting solutions to the problem of displacement by promoting and creating satisfactory conditions for voluntary return, local integration or relocation on a sustainable basis”. A significant indicator of durable solutions emphasized by the Inter-Agency Standing Committee on Durable Solutions for IDPs (IASC) is that such solutions must result in a situation where IDPs “no longer have any specific assistance and protection needs that are linked to their displacement and [as such] can enjoy their human rights without discrimination on account of their displacement”.Footnote 67 The idea that resonates from this fact is that durable solutions should involve “a workable balance between the development agenda and protection schemes for communities already displaced or in danger of being displaced”.Footnote 68 In achieving a workable balance, there must necessarily be an agreement between the state and the persons likely to be displaced. However, such an agreement cannot be realized where consultation is regarded as a means of merely gathering opinions or legitimizing decisions that have already been made.
Interpreting “consultation” merely as a means of gathering opinions or legitimizing decisions that have already been made also goes against the obligation on states to formulate development plans based on the active, free and meaningful participation of persons involved.Footnote 69 Active, free and meaningful participation of individuals in development processes contemplates a purposeful engagement of individuals in development plans, programmes and projects (bound to affect them) in a manner devoid of coercion. Such participation must necessarily be a two-way process and should drive development outcomes. It cannot be conceived as a process of legitimizing decisions that have already been made. Hence, if states are to ensure free, active and meaningful participation in development processes, “consultation” cannot merely be a form of legitimizing decisions that have already been made relating to development projects. Having emphasized that consultation cannot be regarded as a means of merely gathering opinions or legitimizing decisions that have already been made, an important question that needs to be answered is how the process of consultation should be understood. The authors contend that it is pertinent to implement consultation in light of African customs and traditions under which systems consultation is a consensual decision-making process and not a means of legitimizing decisions that have been finalized. Article 7(3)(c) of the Guiding Principles on Internal DisplacementFootnote 70 aligns itself with this by requiring states to seek the free, prior and informed consent of persons likely to be displaced. With respect to mining projects, the ECOWAS Directive on the Harmonisation of Guiding Principles and Policies in the Mining Sector sets a best practice standard in requiring that the free, prior and informed consent of local communities must be obtained before the implementation of mining projects.Footnote 71 It is pertinent that, in consultative processes, groups that are likely to be marginalized are significantly represented. In the IBCSP, the Batwa peoples were not adequately consulted.
As it is likely that specific groups, such as persons with disabilities, indigenous populations and the elderly, may be marginalized in consultative processes, it is important that appropriate safeguards are adopted. For women, an important measure could be women-specific focus groups. For children, cultural hindrances to participation must also be addressed to ensure that the process is child-friendly.
When consultation is geared towards building consent, project sustainability is enhanced, the risk of conflict is lessened and livelihood reconstruction for those displaced can be better realized.Footnote 72
Least restrictive means
Central to the least restrictive means requirement is the need to ensure that displacement is carried out as a last resort.Footnote 73 This element requires states to ensure that other alternatives to a proposed development project are given due consideration.Footnote 74 The least restrictive means requirement, also known as the necessity test, is encapsulated in article 10(2) of the Convention as “feasible alternatives”. Although the Convention does not provide explicitly for feasible alternatives to a proposed development project, there are six alternatives that should be considered in the context of CBDID.
The first alternative is the no-action alternative.Footnote 75 This alternative implies that the possibility should be considered of not implementing a project bound to orchestrate displacement. This alternative is derived from the need to prevent displacement altogether. However, as the duty in article 10(1) of the Convention is not absolute, this alternative may not always be achievable.
A second alternative that states should consider is the option of implementing a project in a location where displacement may not occur. For forest conservation projects, this may require a demarcation of indigenous peoples’ territories so as to ensure that their lands are not encroached upon or plundered, as was observed in a study on Batwa during implementation of the IBCSP.Footnote 76 The essence of this alternative relates to the objective of the “no-action” alternative of preventing displacement altogether or implementing the project in a location where only minimal displacement will occur.
Where these two alternatives are not feasible, a third alternative that should be explored is the option of implementing the project in collaboration with persons likely to be displaced. The Biodiversity Conservation Project initiated to preserve the biodiversity of the Amazon forest in Pastaza province of Ecuador is a good example of this alternative being put in place.Footnote 77 The Quichua communities of Yana Yacu, Nina Amarun and Loracachi, comprising about 300 indigenous peoples in Pastaza Province, were engaged for the implementation of this project.Footnote 78 Capacity-building programmes, comprising a mixed team of scientific experts and indigenous specialists, were initiated to enable members of the communities to implement the project.Footnote 79 In the implementation of the project, the Quichua communities initiated an Inter-Community Biological Conservation Zone that brought together locations in the delta of major tributaries with a rich diversity of flora and fauna.Footnote 80 The success of this initiative surpassed initial expectations. Further, the capacity building exercise enabled the sustainability of conservancy efforts as each of the communities had “trained technicians that … [could] support future territorial planning and natural resource management processes”.Footnote 81 In the NRMP, a collaborative effort would have been a good alternative given that the Sengwer peoples had a rich traditional knowledge of the flora and fauna in the Embobut Forest.
In situations where this alternative is not feasible, strategies for reducing displacement should be considered.Footnote 82 In close proximity to the minimization of displacement is the fifth alternative of modifying project designs. Where project designs cannot be altered, lease negotiations with affected communities should be considered. In the 1950s, when the Jintsu Gawa Dams were to be created in Japan, the government entered into a lease agreement with the peasant land owners rather than expropriating the land.Footnote 83 The implication of this alternative is that ownership of the land remains with persons likely to be displaced within the duration of a project. Where projects are to be permanent, this alternative may not achievable.
However, as the obligation to prevent CBDID is not absolute, involuntary displacement may occur “only as a last resort”,Footnote 84 but this must be accompanied by fair and just compensation. Article 12 of the Convention requires states to “establish an effective legal framework to provide just and fair compensation and other forms of reparations, where appropriate, to internally displaced persons for damage incurred as a result of displacement, in accordance with international standards”. It is important that displacement must never have as a consequence a situation where certain categories of persons, such as women, children or persons with disabilities, are left impoverished. As such, states must ensure that the specific needs of these categories are given due consideration in the implementation of compensation policies. CBDIDPs should be allowed to choose the type of compensation, whether land based, monetary or both.
CONCLUSION
The Convention is ground-breaking in its legal protection in article 5(4) of climate change internally displaced populations. However, there should be normative clarity about states’ obligations with respect to specific issues including displacement due to climate change, which has emerged as a significant global challenge. One of the areas of displacement due to climate change is CBDID. Article 10 of the Convention obligates states “as much as possible” to prevent displacement caused by development projects including CBDID. The phrase “as much as possible” as a yardstick in the Convention for measuring arbitrary CBDID lacks clarity. This article has argued that in understanding “as much as possible”, which contemplates the prevention of arbitrary CBDID, public and private actors must adhere to due process.
This article has also argued that there are key due process requirements that must be complied with, namely prior-impact assessments, information, consultation and least restrictive means. These requirements follow from the provisions of article 10(2) and (3), that are integral to article 10(1). Article 10(2) of the Convention requires states to explore feasible alternatives to climate-based development projects with the full information and consultation of persons likely to be displaced, while article 10(3) requires states to conduct prior socio-economic and environmental impact assessments before the implementation of climate-based development projects. There are six feasible alternatives that should be explored before displacement. However, where these alternatives cannot be realized, it is important for states to ensure that CBDID is carried out in a manner that respects human dignity and protects vulnerable groups.
In operationalizing the obligation in the Convention, this article has argued that it is important for states to domesticate those obligations. States must ensure that institutions exist for operationalizing the due process requirements. Moreover, supranational institutions such as the African Commission and the Conference of State Parties have essential roles to perform. The African Commission should develop a General Comment specifically on article 10 of the Convention to clarify the obligation of states to prevent CBDID “as much as possible”.
