Amid escalating impacts of climate change, energy transition is strikingly necessary to tackle climate change. There is an equally important question as the necessity of transition: how this energy transition will be conducted, especially if it will perpetuate or exacerbate the past injustices.[1] Unlike what has been hinted at from time to time, we strongly argue that switching to a non-fossil fuel energy source will not automatically resolve systemic injustices.[2]
“Just transition” as a legal concept has arisen from the necessity to govern the transition in a way that keeps “the value of ‘justice’ at its core”[3] and does not harm vulnerable and marginalized communities.[4] Even though some understandings of just transition only take into account the injustices faced by workers in high-emitting industries, who lose their jobs; we take a broader approach, which allows us – in line with the symposium – to capture various injustices faced by certain African communities in relation to how the transition is conducted. We argue that in determining “how” the energy transition must take place, a question that deeply affects many actors on the African continent, a bottom-up approach is the only viable solution.
What is Lacking in International Law Governing Just Transition
Just transition appeared in the United Nations Framework Convention on Climate Change (UNFCCC) Conference of the Parties (COP) reports in the early 2010s,[5] with the number of references to just transition in UNFCCC documents increasing over time.[6] The Paris Agreement Preamble (2015) states a commitment to “a just transition of the workforce,”[7] following the need to account for the impacts of climate change response measures.[8] After 2015, UNFCCC parties adopted decisions using just transition in broader ways than limiting it to merely the protection of workers.[9] In this way, they seem to create room for a “subsequent practice” – in the meaning of the Vienna Convention on the Law of the Treaties. This can allow parties to the Paris Agreement to broadly conceptualize just transition,[10] which would include, for instance, practices in the mining of energy transition minerals, needed for renewable technologies.[11]
Interestingly, the question of just transition did not find a prominent place in either the International Court of Justice (ICJ) Climate Change Advisory Opinion or the Inter-American Court of Human Rights (IACtHR) Climate Emergency and Human Rights Advisory Opinion. While the ICJ Advisory Opinion did not have any remarks on just transition, the IACtHR limited its analysis of just transition with aid to the least developed countries[12] and policies to support workers’ displacement and job losses due to the transition.[13] These remarks fell short of describing how the transition must take place and the root causes of problems occurring during the transition.
The patterns of colonialism and extractivist motives are deeply rooted in the practices of transition minerals mining in the African continent. In this regard, the African Court on Human and Peoples’ Rights’ pending advisory opinion on climate change promises to translate claims by the African communities affected by the mining of transition minerals into international law and achieve the goal of “achieving a just transition that leaves no nation behind,” set by the African Union.[14]
Practices in Transition Minerals Mining: Who They Benefit, Who They Harm
Africa holds the key minerals currently needed for the energy transition (for instance iridium in South Africa, Cobalt in the Democratic Republic of Congo, graphite and manganese in Gabon and Mozambique), which are also known as “transition minerals” or “critical minerals”.[15] This could have finally contributed to the financial status, rights and welfare of millions of Africans, and become a solution for energy access for the most vulnerable communities, which remains scarce up to date. Indeed, the revenue from these minerals could fund social services, secure land and labor rights, and directly improve living standards, if controlled and distributed equitably. Yet, companies, investors and governments are prioritizing global extractivist demands over communities’ needs, as raw materials are being exported to Global North countries, before the renewable energy sector can locally process and use those to create widespread energy access.[16]
Studies examining the impacts of transition mineral mining have identified, in many instances, environmental, health, and social problems. Child labor and unregulated and dangerous conditions for cobalt mining in the Democratic Republic of the Congo,[17] extreme health risks for communities caused by electronic waste recycling in Ghana,[18] toxic spill from copper mines causing pollution and health risks in Zambia,[19] land dispossession and marginalization of Black and Indigenous communities and women due to mining projects in South Africa,[20] and carbon trading projects leading to the forced removal of Indigenous peoples in Kenya.[21] All these examples show that the transition’s burdens are heavily carried by the typically marginalized African communities. While companies and investors extract the resources, greenwash their operations, and make profit, and governments leverage the immediate benefits of this extraction to bolster political advantages, the main concerns of the African people are being neglected.
These patterns reveal that many governance approaches associated with just transition continue to operate through top-down regulatory and corporate frameworks that inadequately address informal upstream production systems. As a result, the social and environmental burdens of transition remain concentrated among vulnerable communities positioned at the bottom of global supply chains. This raises a broader question within just transition governance: whether existing legal and governance frameworks can address the structural inequalities embedded within transition mineral supply chains.
Why Top-Down Governance Fails in Global Supply Chains
Over the past two decades, multiple governance mechanisms—including state regulation, international legal frameworks, corporate initiatives, private governance systems, and consumer country due diligence laws—have evolved to address human rights and environmental abuses within global supply chains. However, despite this dense governance architecture, harmful practices remain widespread. Why does exploitation persist despite the expansion of governance interventions?
First, governance frameworks are largely designed around formal, traceable supply chains organised through contractual labour relations, whereas production in many sectors remains informal, labour-intensive, and survival-driven, where producers often rely on family labour, informal arrangements, or child labour to sustain production. For example, artisanal cobalt mining frequently operates through informal and loosely regulated networks.[22] These actors are often excluded from governance design. Consequently, governance mechanisms struggle to engage with actual labour organisation.
Second, governance mechanisms rarely extend effectively into upstream and informal production systems because governance frameworks often fail to capture the actors operating within them. Due diligence frameworks, certification schemes, and corporate audits tend to focus on first-tier suppliers, where monitoring is easier, while labour-intensive and high-risk activities remain further upstream. For instance, labour risks in cocoa supply chains are concentrated at farm level, often beyond traceability systems, while cobalt extraction frequently occurs in informal mining sites outside regulatory oversight. Existing cocoa traceability systems also remain limited in scope, particularly in monitoring indirect sourcing channels and informal intermediaries.[23] This demonstrates the inability of current governance mechanisms to capture upstream production networks and informal actors.
Third, governance mechanisms approach exploitation primarily through compliance-based categories such as child labour, forced labour, and hazardous work. While these categories establish important normative standards, such as the ILO Minimum Age Convention (No. 138), the Worst Forms of Child Labour Convention (No. 182), the UN Guiding Principles on Business and Human Rights (UNGPs), and the OECD Due Diligence Guidance for Responsible Business Conduct, they focus on observable violations rather than the conditions that produce them. For example, in cocoa production, child labour has been linked to low farm-gate prices and farmers’ limited ability to hire adult labour, similar to hazardous labour in cobalt mining, which reflects the absence of viable economic alternatives.[24] Governance mechanisms therefore address symptoms rather than the structural processes sustaining exploitation, reflecting broader failures in labour governance systems.[25]
Fourth, governance frameworks largely fail to address unequal value distribution within global supply chains. Producers often bear the costs and risks of production while receiving only a small share of the final commodity value. This imbalance limits producers’ ability to improve labour conditions or invest in sustainable practices, yet governance mechanisms rarely intervene in pricing structures or value distribution.
Finally, existing top-down governance mechanisms remain fragmented across international organizations, national regulations, corporate due diligence systems, and voluntary sustainability initiatives that frequently operate in parallel rather than as a coherent system. This fragmentation creates uneven implementation, duplication of efforts, and persistent gaps in coverage, undermining coherent and effective enforcement across supply chains.
Overall, the above discussion demonstrates that the limited effectiveness of top-down governance is rooted in its disconnect from the realities of production. As long as governance remains externally designed and primarily compliance-oriented, it is unlikely to effectively address the conditions that sustain exploitation. This points to the need for governance approaches that are more closely grounded in local production realities and the perspectives of upstream actors.
Reconfiguring Governance: Bottom-Up Approaches as a Structural Alternative
To address the shortcomings of top-down governance, increasing attention has been given to bottom-up governance approaches, which place upstream actors—including producers, workers, cooperatives, and local communities—at the centre of governance by actively involving them in the design, implementation, and monitoring of governance processes. Bottom-up approaches address structural weaknesses in top-down governance by centering upstream actors; those who generate value in global supply chains, assume most production risks, and receive limited economic benefits. By involving producers, workers, cooperatives, and local communities directly in the design, implementation, and monitoring of governance interventions, these approaches improve oversight and tackle the structural inequalities that sustain labour exploitation in upstream and informal production systems. In doing so, they advance greater transparency, accountability, participation, and fairer value distribution.
Transparency remains a central weakness of top-down systems. Corporate audits and traceability mechanisms typically focus only on first-tier suppliers, which allows exploitation to persist further upstream, where production is more fragmented and informal. For example, just 43.6% of cocoa entering Europe is traceable to cooperatives, while the rest passes through indirect or unknown channels.[26] In contrast, bottom-up approaches strengthen transparency through community-based monitoring and locally generated knowledge, which can reveal risks overlooked by external audits.
Similarly, accountability is often limited when governance relies on corporate self-reporting and voluntary compliance. Bottom-up governance addresses this by emphasizing enforceable obligations and independent verification. By integrating local initiatives with formal regulation, these approaches strengthen oversight, enable sanctions for non-compliance, and make it easier to uncover labour and environmental risks in informal production systems.
Another core feature of bottom-up governance is meaningful participation by upstream producers. Externally designed, top-down systems often fail to reflect local realities, thereby excluding those most vulnerable to exploitation from decision-making. Bottom-up approaches close this gap by building cooperative structures, supporting community-based monitoring, and ensuring producer representation. As a result, oversight becomes both context-sensitive and participatory.
Fairer value distribution across supply chains is essential, since labour exploitation is closely tied to structural economic inequality. Upstream producers typically bear most costs and risks, yet receive only a fraction of the final commodity value—for instance, cocoa farmers capture just 10% of the final retail price of chocolate products.[27] Bottom-up governance seeks to redress these structural imbalances by advocating for equitable value sharing and challenging practices that concentrate profits downstream. Without such changes, top-down governance mechanisms risk merely managing exploitation instead of transforming its root causes.
Nevertheless, the transformative potential of bottom-up governance depends on its legitimacy within broader governance architectures. Locally grounded initiatives often remain marginal unless they gain institutional recognition, regulatory integration, and sustained support. Even with strong local alignment, these approaches can be limited if dominant systems in the global value chains continue to prioritize corporate audits and external standards. Therefore, their effectiveness depends not only on participation, but also on the willingness of states, corporations, and policymakers to recognize and support locally embedded approaches as legitimate sources of governance.
Conclusion
The persistence of exploitation in global supply chains reflects a structural misalignment between governance design and the realities of production systems. While top-down approaches have expanded significantly, they remain limited in their ability to engage with informal production structures, upstream risks, and unequal value distribution. Bottom-up governance offers a more grounded alternative by aligning governance with local realities and addressing underlying structural drivers. However, its effectiveness depends on its recognition, operationalisation, and support within existing governance systems, as well as its capacity to reconfigure these systems in ways that place locally grounded initiatives at the centre of governance.
[1] Simone Abram and others, ‘Just Transition: A Whole-Systems Approach to Decarbonisation’ (2022) 22 Climate Policy 1033, 1034 <https://doi.org/10.1080/14693062.2022.2108365>.
[2] Elizabeth J Kennedy, ‘Equitable, Sustainable, and Just: A Transition Framework’ (2022) 64 Arizona Law Review 1045, 1045, 1049.
[3] Hana Müllerová and others, ‘Building the Concept of Just Transition in Law: Reflections on Its Conceptual Framing, Structure and Content’ (2023) 53 Environmental Policy and Law 275, 281 <https://doi.org/10.3233/EPL-230012>.
[4] Harro Van Asselt and Tejas Rao, ‘Fossil Fuel Feuds and the ICJ Advisory Opinion on Climate Change’ [2026] Review of European, Comparative & International Environmental Law reel.70053, 3 <https://doi.org/10.1111/reel.70053>.
[5] Dimitris Stevis and Romain Felli, ‘Global Labour Unions and Just Transition to a Green Economy’ (2015) 15 International Environmental Agreements: Politics, Law and Economics 29, 33 <https://doi.org/10.1007/s10784-014-9266-1>.
[6] Vilja Johansson, ‘Just Transition as an Evolving Concept in International Climate Law’ (2023) 35 Journal of Environmental Law 229, 230 <https://doi.org/10.1093/jel/eqad017>.
[7] ‘Paris Agreement (2015) 3156 UNTS 79’ art Preamble paragraph 11.
[8] ibid Preamble paragraph 12.
[9] Johansson (n 7) 241.
[10] ibid 243–244.
[11] ‘Energy Transition Minerals | UNEP’ (19 February 2024) <https://www.unep.org/news-and-stories/story/what-are-energy-transition-minerals-and-how-can-they-unlock-clean-energy-age> accessed 15 May 2026.
[12] IACtHR, Climate Emergency and Human Rights [2025] Advisory Opinion OC-32/25 [264].
[13] ibid 447.
[14] ‘Written Statement of the African Union (Request for Advisory Opinion)’.
[15] Nurcan Kilinc-Ata and Liliana Proskuryakova, ‘The Critical Minerals Dilemma: Rethinking Energy Transition Strategies in Africa’ (2025) 111 Resources Policy 105769, 1 <https://doi.org/10.1016/j.resourpol.2025.105769>.
[16] ibid 5.
[17] Calvão, F., Mcdonald, C. E. A., & Bolay, M. (2021). Cobalt mining and the corporate outsourcing of responsibility in the Democratic Republic of Congo. The Extractive Industries and Society, 8(4), 100884.
[18] Benjamin K Sovacool and others, ‘The Decarbonisation Divide: Contextualizing Landscapes of Low-Carbon Exploitation and Toxicity in Africa’ (2020) 60 Global Environmental Change 102028, 16–17 <https://doi.org/10.1016/j.gloenvcha.2019.102028>.
[19] ‘Transition Minerals Tracker 2025: Africa’ (Business and Human Rights Centre) <https://www.business-humanrights.org/en/from-us/briefings/transition-minerals-tracker-2025-africa/> accessed 5 May 2026.
[20] Jackie Dugard, ‘Xolobeni’s Struggle against Patriracial-Colonocapitalist Mining in South Africa: A Counterpoint to Climate Catastrophe?’ (2024) 41 Wisconsin International Law Journal 551, 556, 567–569.
[21] Nicole Redvers and others, ‘Carbon Markets: A New Form of Colonialism for Indigenous Peoples?’ (2025) 9 The Lancet Planetary Health e421, e421 <https://doi.org/10.1016/S2542-5196(25)00086-5>.
[22] LeBaron G and Gore E, ‘Gender and Forced Labour in Cocoa Supply Chains’ (2020) 56(6) The Journal of Development Studies 1095; Calvão F, McDonald CEA and Bolay M, ‘Cobalt Mining and the Corporate Outsourcing of Responsibility in the Democratic Republic of Congo’ (2021) 8(4) The Extractive Industries and Society 100884.
[23] Ingram V, Van Rijn F, Waarts Y and Gilhuis H, ‘The Impacts of Cocoa Sustainability Initiatives in West Africa’ (2018) 10(11) Sustainability 4249.
[24] Trevisani M, ‘Cocoa Crisis: Cartelizing West African Cocoa in Response to the Persistent Use of Child Labor’ (2024) 24 Chicago Journal of International Law 477; Kara S, Cobalt Red: How the Blood of the Congo Powers Our Lives (St Martin’s Press 2023).
[25] LeBaron G, Combatting Modern Slavery: Why Labour Governance Is Failing and What We Can Do About It (Polity Press 2021).
[26] Ingram and others (n 24).
[27] Trevisani (n24), 18.
