23 March 2021 – by Vaughn Rajah
Introduction
We live in an age of extinction. The current geological epoch in which Earth and humanity finds itself in is the Anthropocene. It describes the devastating biological impact humanity has had on the planet, tantamount to an extinction event.[1] During this period, human-influenced, or anthropogenic, factors have altered geological, atmospheric and other earth systems beyond scientifically defined stable parameters, resulting in, amongst other consequences, a changing climate and mass extinctions of flora and fauna.[2] Within this context, the overarching argument of this article is that the current environmental law regime, in South Africa and globally, is inadequate to address the challenges of the Anthropocene and posits that rights-based legal responses to environmental degradation offer a solution in this regard.
This will be conveyed through a cursory analysis of the history of and threats posed by the Anthropocene, coupled with a discussion of the status and flaws of the current environmental law regime. With this in mind, the notion of environmental constitutionalism as a way forward and its application in the South African context will be discussed. The importance of its implementation with regards to environmental movements in South Africa will then be highlighted. Thereafter, and within the context of the global environmental legal regime, the responses of international environmental law to climate change will be assessed. Following on from this, the capacity of international law to hold global actors – particularly multinational corporations – accountable for transnational environmental harm will be examined. Finally, the role of rights-based approaches in enhancing the efficacy of climate change litigation in relation to these and other disputes will be evaluated.
Ultimately, it is contended that a holistic reimagining of environmental law is required wherein a balancing of the rights of nature and socio-economic rights is achieved and placed at the heart of environmental action, in order to address the greatest threats of the Anthropocene.
Environmental Law in an Age of Extinction
The Anthropocene is an epoch wherein humankind is changing the fundamental nature of Earth’s systems, perhaps irreversibly, due to a number of energy-dependent processes that began during the First Industrial Revolution.[3] The challenges presented by this include issues of human security (especially within the Global North and South paradigm as a result of environmental degradation), energy security, as well as how to effectively mitigate and adapt to climate change.[4] Environmental law and governance are the core structures through which to combat such exponential effects.[5]
Despite this new-found understanding of the challenges of the Anthropocene, the global environmental legal system lacks a collective focus, proactive measures, or a substantive recognition of the threats posed by the Anthropocene. It is therefore ill-equipped to respond decisively to the current global ecological crisis.[6] This paper contends that rights-based legal approaches to combating environmental degradation are suitable strategies to transform environmental law and governance along such lines in order to address the environmental and socio-economic challenges of the Anthropocene.
A transformative approach to environmental constitutionalism is one such method. It is a legal philosophy dedicated to a rights-based approach to environmental action within a framework of transformative constitutionalism.[7] Transformative constitutionalism in the South African context involves breaking away from past oppression via large-scale societal change grounded in legal processes.[8] Hence, transformative environmental constitutionalism in South Africa should entail, at a minimum, an improvement in basic living conditions of the poorest members of society, and an understanding that socio-economic rights – such as the right to shelter, water, and dignity – are inherently linked to the protection and restoration of the environment.[9]
Environmental Constitutionalism and its Implementation in South Africa
There must be a shift from primarily procedural approaches to promote environmental constitutionalism in South Africa via substantive rights-based legal mechanisms. Environmental constitutionalism is a multi-faceted concept that consists of ‘thin’[10] components, that is, the overarching framework of environmental governance, as well as ‘thick’[11] components that relate to rights-based environmental governance strategies.[12] Law itself is necessary for effective environmental constitutionalism due to its ability to shape human behaviour and protect common interests.[13]
The Constitution of the Republic of South Africa, 1996 (the Constitution) is one such legal framework, entrenching substantive environmental and socio-economic rights.[14] Within this framework, the South African legal architecture is imbued with a substantive environmental right.[15] However, courts in South Africa have thus far failed to develop this substantive right as it applies to environmental justice, opting instead to focus on constitutionally entrenched procedural rights such as the right to access to information, undermining important environmental issues.[16] The impact of this, is that the most potent effects of environmental degradation in the Anthropocene are not placed at the centre of the discourse nor are they taken into account when forming legal foundations for possible solutions.
Substantive rights must be prioritised in South African jurisprudence if the nation’s transformative goals are to be realised.[17] Issues of social justice, through a discussion of the impact of environmental degradation on the ability of the majority of the population to enjoy fundamental human rights, and the effects upon the environment itself, must be brought to the fore. Transformative environmental constitutionalism demonstrates that socio-economic and environmental rights are not mutually exclusive, and that they in fact inform and reinforce one another.[18]
Rights-based Approaches and Environmental Movements in South Africa
Public interest litigation and environmental activism are necessary methods to restructure South African power dynamics in order to effectively protect the environment and achieve socio-economic goals as discussed above.
Environmental protection of this nature heavily depends upon public participation.[19] A major obstacle to public interest environmental litigation in South Africa is the emergence of strategic litigation against public participation (SLAPP) suits.[20] SLAPP suits, originating in the United States (US), are meritless cases brought by polluters primarily to waste the resources and time of the opposing party – winning the suit is a secondary concern.[21] South Africa’s environmental legislative framework, consisting mainly of the National Environmental Management Act[22] (NEMA) and the Constitution, lacks the focus of US (and particularly Californian) statutes to effectively address SLAPP suits as they apply to environmental litigation.[23]
Alternatively, South African courts should utilise procedural and substantive rights-based legal methods currently at their disposal to ensure public interest environmental litigants are protected from SLAPP suits, especially in relation to their rights to seek satisfaction in court as well as that of a healthy environmental.[24] It is also vital that poor-led movements work alongside existing environmental organisations that have pursued public interest environmental litigation, such as Earthlife Africa, to combat power structures and private sector interests in South Africa in order to ensure that a balance between socio-economic and environmental rights is achieved.[25] It has been made clear that rights-based approaches have the potential to protect and promote environmental movements in developing nations, which are generally the states most vulnerable to the effects of environmental degradation in the Anthropocene. Within this context, climate change, which is possibly the greatest threat of the current epoch, is discussed below.
The Big Picture: Understanding the International Climate Law Regime
The adequacy of international and South African legal responses to climate change is dependent upon their implementation. Climate change is the overarching existential threat of the Anthropocene.[26]
Three key treaties have been negotiated for the purposes of regulating climate change at the global level, and represent sources of international climate change law. In 1994, the United Nations Framework Convention on Climate Change (UNFCCC), signed in 1992, entered into force.[27] The first international agreement to be linked to the UNFCCC was the Kyoto Protocol (Kyoto), signed in 1997.[28] Kyoto is no longer in force. A major pitfall was that negotiations failed to make major polluters, such as the US, parties to the treaty.[29] In 2016, the Paris Agreement (Paris), signed in 2015, entered into force.[30] It is historic in the sense that it is the first climate change treaty to reference human rights.[31] Although it is not an orthodox human rights instrument, its development and creation in line with global rights norms serves to entrench them within the climate regime, and allows for recognition of how climate change impacts the most vulnerable.[32] Article 4(4) of the treaty outlines the General Principle of international environmental law of Common but Differentiated Responsibilities. The Principle recognises the uneven distribution of climate change-related burdens, with the most destructive consequences exacted upon developing nations rather than the developed originators of the problem.[33]
Recent legislative responses such as the 2018 Climate Change Bill and 2019 Carbon Tax Act serve as manifestations of South Africa’s commitment to Paris.[34] These responses, if enforced, would meet many of South Africa’s Nationally Determined Contributions to the climate fight as per Paris. Though these recent responses are comprehensive, their adequacy in addressing the climate crisis will depend on their largely voluntary enforcement, both internationally and locally.
Corporate Accountability for Environmental Harms on an International Basis
Within this global context, multinational corporations (MNCs) must be held accountable for transboundary environmental harm by international law. The global scale at which modern MNCs operate inevitability results in widespread environmental harm.[35] Poorly regulated and substandard MNC activities have resulted in numerous accidents, such as water contamination, deforestation, soil erosion and the exploitation of natural resources by oil, mining and forestry companies.[36]
Domestic recourse is the preferred avenue for preventing environmental abuses by MNCs.[37] This, however, is a largely ineffective avenue as it presents an orthodox view of law wherein states are the principle actors in the global order, and state sovereignty is paramount.[38] This disregards the fact that MNC operations in the host country have the potential to affect that state’s environment as well as that of other countries, as was the case in Ecuador and Peru with regards to MNC water contamination.[39] Additionally, this ignores the very real influence of MNCs upon governments, particularly in developing states, and the threat this presents to domestic enforcement.[40] For example, the Nigerian state relies on oil MNCs as its major source of revenue, in turn granting these corporations enormous influence and control.[41]
The current international legal order is not well equipped to address transboundary environmental harms.[42] One solution would be the development of international jurisprudence to recognise an universal substantive environmental right, under which companies could be held accountable.[43] This would supplant the outdated concept that international change is largely state-driven, especially with regards to the environment, and instead increase international focus on corporate-driven environmental destruction.[44] There is evidence to suggest that international enforcement would reduce corporate-driven environmental disasters as well as provide schemes to justly distribute clean-up costs.[45] This long-term approach must be supplemented through short term enforcement by economic superpowers such as the United States, where many MNCs are incorporated.[46]
The Importance of Rights-based Approaches to Climate Litigation
The courts are a key avenue for the enforcement of the rights-based legal frameworks discussed above. This section contends that a rights-based approach to climate change litigation enhances its efficacy as a tool of climate action.
The global threat of climate change results in a number of contentious situations and issues of dispute.[47] It is a phenomenon that has grown as a subject of legal proceedings and has caused pre-existing legal norms to be reimagined in light of its many strands of contention and uncertainty.[48] Increasingly, plaintiffs are advancing rights-based arguments in climate change litigation.[49] Climate change litigation is a growing global[50] trend, coinciding with the Paris Agreement and the alignment of the global climate regime with international human rights as already discussed, wherein plaintiffs (generally NGOs and individuals), seek to urge defendants (generally governments, though corporations are increasingly being brought into the fold) to be more ambitious in their responses to their climate change, and to enforce or enhance existing climate policies more effectively.[51] Gbemre v Shell Petroleum[52] was notable in that it was one of the few climate-related cased premised on rights entrenched under the African Charter.[53] The landmark case of Leghari v Federation of Pakistan[54] directly relied on fundamental rights to rule that government’s failure to sufficiently combat climate change violated petitioners’ rights. This growing pattern has its roots in the grassroots genesis of the climate justice movement, framed in pluralistic terms of social justice, democracy and sustainability.[55] Juliana v. United States[56] is a case based on a lawsuit asserting that the US government violated the youths’ rights, and that of future generations by allowing activities that significantly harmed their right to life and liberty. Its dismissal by the Ninth Circuit is currently being appealed.
The importance of a rights-based approach goes beyond the mere winning of a case. ‘Winning’, in terms of this kind of strategic litigation, also relates to the promotion of social and policy issues with respect to climate change and ingraining these issues as facets of public sentiment and thought, with particular reference to the impact of climate change on fundamental rights.[57]
Conclusion
The Anthropocene represents an epoch in which humanity is fundamentally altering the functioning of Earth’s systems. The use of rights-based approaches to combat human-induced environmental degradation is vital if we are to address its greatest challenges.
One such approach is environmental constitutionalism. This legal concept is dedicated to promoting and balancing socio-economic and environmental rights within a constitutional framework. The use of substantive environmental rights within this approach is vital to promote and protect environmental activism and grassroots environmental justice movements. Rights-based approaches are also key in the context of international climate law. The Paris Agreement was developed in line with international human rights norms, and this had the effect of centring the human and environmental impact of climate change in the global discourse. Another vital requirement is to hold MNCs accountable for transnational environmental harm. Where domestic procedure has failed in this regard, international law must succeed. The probability of this success is enhanced by the use of rights-based approaches placing international focus on corporate-driven global environmental harm in addition to allowing for more effective enforcement and prevention schemes.
Perhaps the most important indicator of the value of rights-based approaches is the growing global trend of the advancement of rights-based arguments in climate change litigation. Cases such as Gbemre, Leghari and Juliana are signifiers of changing patterns of public thought with reference to the impact of climate change on fundamental rights. Ultimately, the need to import fundamental rights into the environmental legal and governance regime underlies a need to reimagine society as a whole. This, I believe, is possible in a world premised on the sanctity of international human and environmental rights.
Human Rights Pulse core team member and Earth Refuge Archivist Vaughn is passionate about sustainability and human rights, his scholarship and writing focuses on international law, climate change and transitional justice.
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[3] RJ Lazarus The making of environmental law (2004) 12 13.
[4] Kotzé (note 1 above) 123 124.
[5] Kotzé (note 1 above) 140.
[6] F Biermann et al ‘Navigating the Anthropocene: Improving Earth system governance’ (2012) 335 Science 1306.
[7] M Murcott ‘Introducing transformative environmental constitutionalism in South Africa’ in E Daly et al (eds) New frontiers in environmental constitutionalism (2017) 288 289.
[8] K Klare ‘Legal culture and transformative constitutionalism’ (1998) 14 South African Journal on Human Rights 146 150.
[9] Murcott (note 7 above) 291 292 293.
[10] L Kotzé ‘The conceptual contours of environmental constitutionalism’ (2015) 21(187) Widener Law Review 194.
[11] Kotzé (as above) 196 198.
[12] Kotzé (note 10 above) 194 198.
[13] L Kotzé ‘Human rights and the environment in the Anthropocene’ (2014) 1(3) The Anthropocene Review 252.
[14] J Dugard & A Alcaro ‘Let’s work together: Environmental and socio-economic rights in the courts’ (2013) 29 South African Journal on Human Rights 15 16.
[15] The Constitution, sec 24.
[16] M Murcott ‘The procedural right of access to information as a means of implementing environmental constitutionalism in South Africa’ in E Daly and J May (eds) Implementing environmental constitutionalism: Current global challenges (2018) 194 195.
[17] M Murcott ‘Transformative environmental constitutionalism’s response to the setting aside of South Africa’s moratorium on rhino horn trade’ (2017) 6 Humanities 85 86.
[18] Murcott (note 7 above) 280.
[19] T Murombo & H Valentine ‘SLAPP suits: An emerging obstacle to public interest environmental litigation in South Africa’ (2011) 27 South African Journal on Human Rights 105.
[20] T Murombo & H Valentine (as above) 83.
[21] G Pring & P Canan SLAPPS Getting Sued for Speaking Out (1996) 8 9.
[22] 107 of 1998.
[23] T Murombo & H Valentine (note 21 above) 87 88 93 94.
[24] WA Joubert et al LAWSA civil procedure (2007) 229.
[25] Earthlife Africa Johannesburg v Minister of Environmental Affairs and Others 2017 (2) SA 519 (GP).
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[27] UN General Assembly, United Nations Framework Convention on Climate Change: resolution / adopted by the General Assembly, 20 January 1994, A/RES/48/189, (UNFCCC).
[28] Kyoto Protocol to the United Nations Framework Convention on Climate Change, 10 December 1997, U.N. Doc FCCC/CP/1997/7/Add.1, 37 I.L.M. 22 (Kyoto).
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[31] Paris (as above) preamble.
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[33] Paris (note 32 above) art 4(4).
[34] Climate Change Bill 580 of 2018; Carbon Tax Act 15 of 2019.
[35] E Morgera Corporate Accountability in International Environmental Law (2009) 5.
[36] Morgera (as above) 6 7.
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[39] Morgera (note 37 above) 6.
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[43] Shinsato (note 40 above) 201; Ratner (note 42 above) 825.
[44] Shinsato (note 40 above) 187.
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[46] Shinsato (note 40 above) 204 205.
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[51] Peel & Osofsky (as above) 39 40.
[52] Gbemre v Shell Petroleum Development Company Nigeria Ltd and Others (2005) AHRLR 151 (NgHC 2005).
[53] African Charter on Human and Peoples’ Rights, 1986.
[54] (2015) W.P. No. 25501/201.
[55] D Schlosberg & L Collins, ‘From environmental to climate justice: climate change and the discourse of environmental justice’ (2014) WIREs Climate Change 362.
[56] 339 US 1062 (2018).
[57] Peel & Osofsky (note 51 above) 66.
