Can Africa Still Drill?

In July 2025, the International Court of Justice (ICJ) adopted its advisory opinion on climate change. While the ICJ found that any State suffering from climate change can bring charges against others for their contribution to climate change, the opinion does not distinguish between the obligations of developed and developing States (except where treaty law already imposes different obligations). Some judges have, in separate opinions, criticised this approach, citing the unequal contribution of States to climate change and disparities in human development levels. 

African States and the African Union have continued to support fossil fuel development on the continent. In light of this advisory opinion, what obligations are imposed on developing States, like African States, to protect the climate, particularly regarding the further development of fossil fuel industries? 

Continued investment in fossil fuel production and exploration in Africa

Africa’s fossil fuel industry is expanding amidst an intensifying global debate on energy transition. Countries like South Africa, Mozambique, Angola, Kenya, Somalia, Uganda, Tanzania, DRC, and Nigeria opened bids for onshore and offshore oil and gas drilling licenses in 2024 and 2025. Some countries are selling off large areas, with the DRC, in particular, criticised for opening “half of the country” for oil and gas drilling. 

The expansion of fossil fuel exploration and production in Africa is driven by economic development and energy access imperatives, with modern energy needed for heating, cooking, lighting, as well as transport, health care, and clean water provision across the continent. Currently, Africa accounts for more than three-quarters of the global energy access deficit. Half a billion Africans, almost half of the continent’s population, do not have access to electricity. For those connected to the grid, electricity remains expensive and unreliable. Despite high and growing local demand for energy, most of the investment in oil and gas in Africa comes from outside of the continent, largely driven by “Europe’s anxiety for its own energy security.”

The African Union has recommended that “oil exploration and development… should be promoted on a short, medium and long-term basis as a risk mitigation strategy” in countries with large oil reserves, such as Nigeria and Libya. It has also encouraged countries with sufficient oil reserves but no production (like Mauritania, Uganda, Senegal, and Namibia), to “increase production” and “promote” investment in new oil field development. Similar emphasis is placed on natural gas, with calls for countries like Mauritania, Mozambique, South Africa, Nigeria, and Tanzania to “commence production” or “increase production” from recent discoveries. 

The challenge of energy poverty creates a sharp tension between the continent’s competing interests. On the one hand, Africa is one of the most vulnerable regions to climate change. Therefore, it is in the best interest of its people to see ambitious climate action. At the same time, however, it is also in the best interest of African people to accelerate access to energy to meet their basic needs. 

Fossil fuel production and consumption may constitute an internationally wrongful act

In its advisory opinion, the ICJ made a crucial finding pertaining to fossil fuels and their effect on the climate system. It stated that:

Failure of a State to take appropriate action to protect the climate system from GHG emissions — including through fossil fuel production, fossil fuel consumption, the granting of fossil fuel exploration licences or the provision of fossil fuel subsidies — may constitute an internationally wrongful act which is attributable to that State (para. 427).

As phrased by the ICJ, these activities “may” constitute a wrongful act. Whether it will be considered an internationally wrongful act depends on whether the State complied with its obligations under the Paris Agreement and other relevant international agreements, as well as customary law obligations to “act with due diligence in taking measures in accordance with their common but differentiated responsibilities and respective capabilities” in order to prevent significant harm to the environment (para. 457). 

According to the ICJ, this obligation of due diligence is a stringent one because “the ‘[r]isks and projected adverse impacts and related losses and damages from climate change escalate with every increment of global warming’” (para. 254). This means that “a heightened degree of vigilance and prevention is required” (para 138), including in relation to the conduct of private actors. Furthermore, whether a State acted with due diligence depends on the specific case and circumstances being assessed. The assessment should take into account differing national circumstances. The ICJ recognised the principle of sustainable development (or the “need to reconcile economic development with protection of the environment” (para. 147)) and the principle of common but differentiated responsibilities and respective capabilities (CBDR-RC) as “guiding principles” for the application of the relevant legal rules (para. 161). 

The question then arises whether the specific circumstances faced by African countries – that is, low contribution to historic greenhouse gas emissions, high levels of energy poverty, and lack of readily available local or foreign investment in renewable energy – constitute circumstances that would allow them to continue fossil fuel investment and production while complying with due diligence on climate obligations. Phrased differently, do considerations of the principles of sustainable development and CBDR-RC mean that fossil fuel production in Africa would not constitute a wrongful act? Our response is a cautious “no,” should the necessary requirements be fulfilled, as we set out in the next section.

Why fossil fuel industries should be off the table – even for African States

While the ICJ recognised the importance of the principles of sustainable development and CBDR-RC, several of the judges, including Vice-President Sebutinde and Judge Xue in separate opinions and declarations, criticised the ICJ for not unpacking these obligations sufficiently, particularly concerning the distinction between “least developed”, “developing”, and “developed” States. The judges argued that the ICJ did not take full account of fairness considerations when allocating obligations between these categories of States, given also their different contributions to historic and current greenhouse gas emissions. It should be recognised, as emphasised by Judge Xue, that:

Climate change has aggravated the inequality between the rich and the poor and severely constrained the ability of the developing countries, […] to pursue sustainable development goals and to eradicate poverty (para. 28).

Nevertheless, all the judges recognised that meeting the 1.5°C goal requires shifting away from reliance on fossil fuels. Judges Bhandari and Cleveland in a Joint Declaration argued that, in line with CBDR-RC, States with greater capability should transition away from fossil fuels faster, but they made clear that “the obligation to transition away from fossil fuel dependence […] applies to all States” (para. 24). Therefore, CBDR-RC “does not exempt any State from measures that are necessary, consistent with their capabilities and national circumstances, to fulfil the objectives of the climate change treaties and stringent due diligence obligations” (para. 27).

Consequently, due diligence being a stringent test, the need to move away from fossil fuels is an overriding imperative that applies even when considerations of sustainable development and CBDR-RC are placed centrally. All States have to contribute to the “deep, rapid and sustained reductions of [greenhouse gas] emissions” which are necessary to comply with the Paris Agreement obligation to limit global temperature increases to 1.5°C, including by transitioning away from fossil fuels.

In addition to this legal imperative from the ICJ ruling, which could result in African countries being held accountable for fossil fuel activities that could constitute internationally wrongful acts, there are two further compelling arguments for African States to stop investing in fossil fuels. 

The first is a human rights argument– that it is in the best interest of African peoples, both present and future generations, to use renewables and limit further global warming, given the continent’s vulnerability to climate change. The ICJ found that “the full enjoyment of human rights cannot be ensured without the protection of the climate system” (para. 403) and confirmed the right to a clean, healthy and sustainable environment is a human right, a right also fully ensconced in the African human rights system. African States that take their human rights obligations seriously would thus have to also take the 1.5°C obligation under the Paris Agreement seriously, and exert every effort to ensure that their activities do not contribute unduly to further climate change. Furthermore, African countries have obligations under human rights law to regulate the actions of companies in the oil and gas sector. The continued licensing of fossil fuel companies, especially those that are extracting to export to the global market, must be done with a strict application of procedural obligations, such as “climate-specific” environmental impact assessment. 

Second, there are also practical and economic reasons for African States to transition away from fossil fuels. On the one hand, there is the danger that eventual divestment from fossil fuels in the rest of the world and an end to fossil fuel subsidies will result in stranded assets. On the other hand, the abundance of sunshine and minerals for renewable technology in African countries means they have enormous potential for renewable energy. Already, 55% of the total final energy consumption of the continent comes from renewable sources, much higher than Europe’s renewable energy at 15.3% of its total consumption. While harnessing renewable energy requires substantial investment, and Africa currently benefits from only 2% of global investment in renewable energy, the cost of solar panels has declined exponentially, making it an obvious choice for meeting Africa’s energy deficits. Cognizant of this, the African Union should actively steer investments away from fossil fuels and towards renewable energy sources.

Climate Justice, or the “legal tools” the ICJ failed to provide

Despite the clear-cut obligation on African States to, along with the rest of the world, end fossil fuel investment and production, there are considerations of justice that need to be taken into account for most African countries to fully comply with this obligation. 

Climate change is an issue of global injustice where the cost of fossil fuel exploitation is borne by people in countries who are least responsible for causing it, such as African States, and the benefit of fossil fuel extraction is accrued by those most responsible for causing it. Climate action, therefore, requires distributive justice where the socio-economic and environmental cost of centuries of fossil fuel exploitation is distributed so that those who caused it, also pay to address the effects and need for mitigation. To ensure fairness this has to be done to the extent of their contribution, using the benefits they accrued from it. This idea is captured in the “polluter pays” principle, which the ICJ only briefly mentions in its advisory opinion. 

Scientific evidence tells us, with continuously increasing precision, which group of States is most responsible for climate change and to what extent. However, the ICJ’s response to question (b) on the consequences for breaching climate change obligations falls short in this regard. The ICJ interpreted the question as requiring it “to address legal consequences in a general manner,” and concluded that it was not required “to identify the legal responsibility of any particular State or group of States.” The separate opinion of Judge Yusuf criticised that approach by noting that the ICJ, in not recognising the different contributions of States to climate change, “failed to rise to the occasion and to provide the international community with the legal tools necessary for combating climate change in an equitable manner for all States” (para. 19). 

Climate change treaties recognise that equity requires that climate change not be addressed in isolation from other challenges. As provided in Article 4 of the Paris Agreement, mitigation measures must be taken “on the basis of equity, and in the context of sustainable development and efforts to eradicate poverty.” The abstract responsibilities outlined by the ICJ for all States thus have to be further interpreted to give effect to justice and equity considerations. In this regard, climate action cannot be seen separately from developmental needs. 

What then is required for a climate justice approach?

First, the principle of CBDR-RC emphasises the need for international cooperation and obligations to provide significant international support, finance, and technology transfer from developed nations to developing States. It is clear that developed States have an overdue legal and moral obligation to significantly boost cooperation and investment in green energy in Africa, for Africans. That is to say, not the development of, for example, green hydrogen that is exported for European use after using African land and water resources.

Second, as argued by Judges Bhandari and Cleveland, developed States and others with greater capabilities should achieve “deeper and faster targets than developing States with lesser capabilities” (para. 24). It should not be necessary to say this, but highly developed countries like Norway and the UK should take the lead in shifting away from fossil fuels, and the recent opening of offshore oil fields by these countries should be regarded as a blatant violation of their climate obligations and a clearly wrongful act.

Third, the conflict between energy needs driven by poverty alleviation imperatives and the critical need to phase out fossil fuels requires discussion on the distinction between “survival emissions” and “luxury emissions.” To the extent that foreign investment in fossil fuels continues to outstrip investment in green energy, and in the face of the vast energy deficit on the continent, African States may continue to be tempted, to continue developing their fossil fuel deposits, and even view it as a necessity for meeting basic needs. To the extent that individual States, due to a lack of means, are forced to choose between protecting the environment and meeting short term basic needs of their people, they should not be penalised for allowing the development of fossil fuel industries on their territories, as this would be a failure of the international community as a whole. 

Finally, African countries themselves need to act with due diligence in redirecting investments in new fossil fuel exploration to renewables. Recent developments in Kenya and Morocco demonstrate how strategic investment in renewables such as solar and geothermal energy can enhance energy security while reducing greenhouse gas emissions. Historically, renewables were seen as an expensive alternative to fossil fuels, but “a positive tipping point” has now been reached where they are “the least expensive and fastest option for new energy generation.” While the bulk of the cost of energy transition should be borne by developed countries in accordance with their greenhouse gas contributions, investment in fossil fuels by African countries will lose its appeal as renewables become comparatively cheaper and more accessible. 

After the ICJ advisory opinion – What next for Africa?

Going forward, Africa needs to reckon with what the ICJ stated explicitly, as well as what has been intentionally left for assessment on a case-by-case basis. In our view, while fossil fuel development and licensing would in most cases constitute a violation of the obligation to protect the climate system, there may be instances where, based on CBDR-RC and national circumstances of African States and the extent of external support, such actions could not, in all justice and equity, be considered wrongful. 

Moreover, based on the duty of international cooperation as clarified by the ICJ, due diligence requires African countries to take all measures at their disposal to secure the required finances and technology for renewable energy, among other key priorities, such as finance for loss and damage. The measures at their disposal are not limited to international diplomacy, but include inter-State litigation to capitalise on the potential for case-by-case determination. In addition to North-to-South financial assistance and technology transfer, South-to-South as well as intra-African cooperation should be boosted significantly. 

A pending request for an advisory opinion by African civil society organisations at the African Court on Human and Peoples’ Rights on climate change could help to fill the gaps left by the ICJ advisory opinion. The forthcoming advisory opinion of the African Court should clarify the obligations of African States in concrete terms, taking account of the enormity of the climate crisis and best available science, but also taking account of the severe energy and poverty crisis in the continent. The African Court should further be cognizant of the variations in responsibility and capacity between African States, and clarify that while all African States have an obligation to transition away from fossil fuels, a higher standard of due diligence is expected from States such as South Africa, Egypt, and Algeria, who together account for more than 60% of the total carbon footprint of the continent. The African Court can also elaborate on the human rights implications of climate change, including extra-territorial obligations–an area only briefly touched on by the ICJ.

The ICJ’s opinion on climate change marks a pivotal moment for Africa, compelling the continent to critically reassess its relationship with fossil fuels against the backdrop of urgent global climate obligations. As we navigate the dual challenges of energy poverty and climate vulnerability, it is essential for African States to embrace a transition toward renewable energy, aligned with both human rights frameworks and sustainable development goals.