The role of environmental human rights in climate change litigationlitigation: African perspectives

Abstract

As the global surge in climate change litigation gains momentum, the intersection between environmental human rights and legal actions addressing climate change has gained prominence. Climate change litigation relying on environmental human rights has been instigated in Kenya, South Africa and Nigeria. While this form of litigation has generally surged following the Paris Agreement's endorsement of the connection between human rights and climate change, and the growing global recognition of this relationship, such litigation must also be understood in the specific context of Africa and its unique circumstances and priorities. There is not much we know about the role of environmental human rights in climate change litigation in Africa. In this respect specifically, we do not know how climate change litigation in Africa has contributed to protecting environmental human rights and environmental protection generally and how environmental human rights have been used in Africa to address climate change through litigation. As far as could be established, there has not been any comprehensive research done on the role of environmental human rights specifically in climate change litigation from these three African countries. Proceeding from the premise that environmental human rights could potentially redirect public and political attention to the detrimental human consequences of climate change; motivate calls for strong political action in addressing climate change, establish duties, entitlements, and governance obligations, the study makes a number of findings. These include that environmental human rights in climate litigation in the three countries under discussion have been liberalising rules on locus standi improving access to justice for vulnerable populations who disproportionately bear the brunt of climate change; contributing to environmental protection and sustainable development; clarifying the links between environmental human rights and climate change; outlining non-state actors climate obligations; interpreting and expanding the purview of environmental human rights; broadening the scope of environmental impact assessments; enhancing climate governance; advancing the rule of law and the implementation of remedies; bolstering claims, and providing a legal basis for litigation. At a general level, the study finds that if environmental human rights are to play a meaningful role in climate change litigation, there is a need for a holistic understanding of environmental human rights, their interconnectedness, and their links with climate change. The courts in such climate change litigation cases will also have to be more innovative and creatively engage with environmental human rights to address climate change through litigation. There is also a need to foster the relationship between the judiciary and other arms of government in overseeing the fulfilment of environmental human rights when court orders have been made in litigation. It will also be up to the litigants to present persuasive argument explicitly invoking environmental human rights to maximise their impact in climate change litigation. The original contribution of this thesis lies in its being the first study to comprehensively interrogate the role of environmental human rights in climate change litigation from Kenya, South Africa, and Nigeria. The originality of the thesis lies in its comparative country analysis and specifically the African dimension of how environmental human rights have been used through climate change litigation in the selected countries.