South Africa’s Constitutional Court, guardian of the Bill of Rights Source: brandsouthafrica.com
Today is Human Rights Day in South Africa. With this in the back of my mind over the past couple of days, two pieces of news triggered resounding bleeps on my ‘high relevancy’ radar.
The first bleep made itself known when I read that the United Nations Special Rapporteur on Human Rights and the Environment, John H. Knox, was pushing hard for the right to a safe and healthy environment to be recognised by the UN. To be honest, I had thought this was already covered in some form in one of the international human rights conventions – and it certainly is in South Africa’s Constitution, and that of many other African countries, from Angola to Zimbabwe.
But existing international human rights covenants talk only of human dignity and equality, and do not specify the crucial role of a clean environment in conferring these goals. Presenting the document ‘Framework Principles on Human Rights and the Environment’ to the Human Rights Council in Geneva, Knox cited the 1.5 million children under-five that die every year throughout the world from environmental shortfalls like dirty water or polluted air. It’s easy to see how socio-economic rights like the right to health and the right to an adequate standard of living are predicated on an environmental right.
While the international human rights architecture is lacking, the courts are not sitting around waiting. In February 2018, in an important precedent for international law, the Inter-American Court of Human Rights recognised the right to a healthy environment as being fundamental to human existence. The court’s opinion found that the right to a healthy environment is both an individual and a collective right. Moreover, it must protect both present and future generations, and countries have a duty to protect these rights beyond their own borders.
Protecting the rights of present and future generations from transboundary harm includes the impacts of climate change, noted Carol Muffett, President of the Center for International Environmental Law (CIEL) that provided an amicus brief to the court.
Which leads us to the second relevant piece of news emerging on my radar via Twitter yesterday morning. Damian Carrington, in an article in The Guardian, poses the question of whether climate litigation will save the world – and sets out progress on a range of current climate change lawsuits.
You might have heard of the billion-dollar court case brought by New York City against Shell, Exxon Mobil, BP, Conoco-Philips and Chevron, the world’s largest publicly-traded oil companies, to hold them responsible for present and future climate change-related damage in the city. The city needs to build sea walls, levees, and dunes, and elevate and harden properties, and parks along its coastline – and the lawsuit poses the question: just where do you think those billions of dollars for adaptation should come from?
Satellite image of Hurricane Sandy (courtesy NASA GOES http://weather.msfc.nasa.gov/GOES/)
As Carrington points out, more than 1,000 climate change cases are registered on the Sabin Center for Climate Change Law’s database at Columbia University. As observed impacts grow – think Hurricane Sandy, the 2017 Caribbean hurricanes, wildfires gone mad in California, prolonged extreme droughts in Australia – so too does awareness that many of the fossil fuel producers knew about climate change and the likely impacts of their products decades ago. We also know more about the extent to which they reportedly went to cover this up.
Climate havoc plus this awareness is fuelling the rising spike of climate litigation. In the USA, six Californian cities and counting have entered the fray. In Uganda, a lawsuit is proceeding against the government on behalf of four minor children, for failing to protect them and future generations from climate change by not implementing necessary adaptation measures. A German court is hearing a Peruvian farmer’s case against RWE, the energy giant, for the perils posed to his Andean hometown of Huaraz from melting snow and ice. And in 2015 the Lahore High Court ruled in favour of a legal action brought by a Pakistani farmer, Asghar Leghari, that the federal government must start implementing its own climate change policies.
Coming back to South Africa, the origins of our Human Rights Day, celebrated on 21st March, lie in the Sharpeville massacre of our apartheid past. On this day in 1960, police standing on top of British-made Saracen armoured cars opened fire on a crowd of people protesting the ‘dom passes’ that were an apartheid mechanism of control of black people, killing 69 of them. A further three protestors were killed by police in Langa in Cape Town later that day, as well as the driver of Cape Times journalists.
Another tragic story from the South African history book, but one seemingly without links to fossil fuel or climate change. The rights in question at Sharpeville in 1960 were human dignity and equality, and the right to procedural justice. And here we are, 58 years later, same country, and the same rights are still not fully realised for all. But now we have unleashed a potent risk multiplier into the mix – climate change’s predations, on top of environmental degradation and un-met social and political needs, could well make it harder for all South Africans to attain these rights.
I find three cases of climate litigation in South Africa on the Sabin Center ‘climate case chart’. Surprise, surprise: all three concern coal.
In September 2017, the environmental and human rights organisation groundWork filed two court applications to oppose new coal-fired power plants in the Mpumalanga Highveld –an air quality priority area. Decisions are still pending on both of these cases. In one of them, groundWork requested South Africa’s High Court to review and set aside the Department of Environmental Affair’s authorisation to develop a 600 MW coal-fired power plant, the “KiPower Project,” which had been issued without first considering the climate change impacts of the plant. The Centre for Environmental Rights, groundWork’s legal team, brought the action under national administrative justice provisions. But in its petition, CER states that climate change poses a serious and imminent threat to the environmental right in section 24 of our Constitution.
Arnot coal-fired power plant in Middelburg, South Africa. (Wikimedia Commons / Gerhard Roux)
In the third case, the High Court found in favour of an action brought by the NGO EarthLife Africa against the Department of Environmental Affairs, which had not considered climate change adequately in an environmental review of plans for the new 1,200 MW coal-fired Thabametsi Power Project, which would operate until about 2060. Which is long after the date by which we would need to cease mining and use of all coal, globally, to keep temperatures below the 1.5°C target of the Paris Agreement.
Across the globe, then, and with the greatest number of cases in the USA, the court challenges on climate change keep mounting. In the words of Malini Mehra, writing in Climate Home News, “The courts can bring remedies and will now increasingly be used to enforce political accountability and ensure climate justice. Litigation need not cost the earth.” Tellingly, she went on to surmise that the Pakistan court case probably cost less than a week’s stay in Bonn for Pakistan’s climate negotiators.
Let us hope that the courts will deliver us from evil, because I am not sure that our politicians – one really can’t always call them leaders – will do so. Meeting human rights across the world, now and into the future, depends on strong action on climate change. I agree with Bloomberg: “Take ’em to court!“
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