The role of soft law in ensuring durable solutions for children displaced by climate change in Africa

Abstract

As global temperatures rise, the frequency and intensity of sudden and slow-onset climate impacts are increasing, disproportionately affecting African children. These impacts drive cross-border displacement, creating an urgent need for durable solutions that protect the rights of displaced children. However, the current international refugee regime does not recognise children displaced by climate change impacts as refugees unless they have experienced some form of individual persecution. Consequently, climate-displaced children are often excluded from the traditional durable solutions of voluntary repatriation, local integration and resettlement to a third state provided under this legal regime. Further, even if they were to have access to these durable solutions, such solutions may not be appropriate in the context of climate change displacement. To address this gap, the article explores the potential of international and regional soft law instruments as a means to protect the rights of climate-displaced children. Although soft law instruments show promise in the protection of climate-displaced children and their rights in Africa, the article concludes that the instruments fall short of fully supporting states in fulfilling their obligations to such children under key legal frameworks, such as the Convention on the Rights of the Child and the African Charter on the Rights and Welfare of the Child. This stems from a distinct lack of recognition of the need for access to durable solutions for children, generally, or for children whom climate change impacts have displaced and are who not refugees, more specifically. The findings suggest that while international and regional soft law may offer a bridge for some protection gaps, there is still a need for stronger legal mechanisms and practical measures to fully protect the rights of climate-displaced children in Africa.