The just concluded 27th Conference of Parties (COP 27) in Egypt has left a bittersweet taste in the mouths of nations in the global south. Much jubilation was witnessed when parties adopted the agenda on setting up a Loss and Damage fund only for it to give way to agony when parties failed to secure requisite commitments to phase out all fossil fuels. There was a legitimate expectation that in view of the existence of vast scientific evidence pointing to the use of fossil fuels as a driver of climate change, parties would adopt the agenda to nip the issue of climate change in the bud.
The Conference of Parties (COP) is an annual forum and the topmost decision making body of the United Nations Climate Change Framework Convention (UNFCCC). The UNFCCC 1992 was formed with the objective of, among others, stabilizing greenhouse gas (GHG) emissions and protection of the earth from the threat of climate change. The UNFCCC has been touted as a helpful tool as it was the first global treaty to explicitly address climate change and through COP meetings, it produced both the Kyoto Protocol and the Paris Agreements.
As commonplace as it may sound, climate justice as a concept has numerous definitions with the most common thread being the fair and equitable division and distribution of benefits, responsibilities and burdens that come with climate change. For purposes of this discussion, we will discuss climate justice in light of the following four broad but not conclusive aspects:
Distributive Justice
This limb of climate justice lays emphasis on access to environmental resources and benefits and allocation of burdens including pollution and impacts of climate change from greenhouse gases(GHG) emissions. It the most known concept of climate justice incorporating historical responsibility and principle of capacity. The goal of this limb is that a country’ s fair contribution to climate action should be based on its historical activity in terms of emissions and wealth.
Developing countries have contributed little to GHG emissions and thus tend to focus on historical responsibility. Developed countries on the other hand contribute more to GHG emissions thus resisting any actions that center around taking historical responsibility by steering climate change discussions in light of the principle of capacity.
Participatory Climate Justice
It entails meaningful involvement of all countries in the decisions of the UNFCCC by being availed an opportunity to be present, to be heard and have their concerns addressed. It is imperative to note that some of the hindrances to participation of countries are internal such as the quality of delegates a country sends to the negotiating table, while others are external such as power imbalance brought about by vested interests from powerful nations and corporations.
Legal Justice
It entails meaningful involvement of all countries in the decisions of the UNFCCC by being availed an opportunity to be Legal justice provides a remedy to the degradation of the environment by providing tools and avenues to hold duty bearers and right holders accountable for actions or inactions that aggravate the effects of climate change. Legal justice is attained using legal tools (laws and policies) and institutions (courts and tribunals). Some of the remedies from this limb include payment of compensation to persons adversely affected by activities that lead to climate change. The tools also serve to protect generations from resulting future harm of climate change by proscribing actions that degrade the environment.
Ethical Climate Justice
Under this limb, all nations are required to take into account the interests of the most vulnerable during decision making. This limb helps to remedy the limitations posed by participatory justice and distributive justice.
Regardless of how we conceptualize climate justice, all of us must act to reduce individual resource consumption and the production of GHG Emissions. The adoption of the agenda on loss and damage and setting up of a fund goes a long way into showing that advocacy by developing nations has borne fruit. Though a temporary measure, we should build on this achievement by piling pressure on member countries to adopt the agenda on doing away with fossil fuel during COP 28.
As we laud the efforts of advocates and negotiators for the successes of COP 27, law professionals in the global south must stand up to be counted by providing local solutions to climate change concerns. As we employ efforts towards adaptation, building resilience and mitigating the effects of climate change, climate litigation comes in handy as a local solution.
Kenya for instance has legal framework that has sufficient guiding principles for protection of the environment. We are equipped with the necessary infrastructure both judicial and administrative to deal with problems that exacerbate effects of climate change. The setting up of the Environment and Land Court with specific mandates on environment and land matters as well as the National Environment Tribunal(NET) has opened up the space for climate litigation.
Interesting enough, climate litigation takes on several dimensions of law that would guarantee favorable outcomes for protection of the environment and reduction in GHG emissions. This can be done through public or private law and may take a constitutional dimension in the protection and upholding of human rights. It might also take an administrative dimension through use of judicial review remedies. An opportunity exists for law practitioners in the area of consumer protection to ventilate climate change concerns from a consumer protection dimension.
We need not invent the wheel as other jurisdictions are already utilizing constitutional legal provisions and structures to hold governments accountable when it comes to climate change concerns. For corporate entities, claimants are moving away from claims based on public nuisance and tort to claims founded on human rights, corporate law, physical planning and environmental laws. The ‘polluter pays’ principle is one such environmental distributive justice principle that citizens of good will can invoke when seeking remedies from courts and tribunals in respect of climate litigation.
It is time for our contribution as a profession towards climate justice is felt through climate litigation.
