Institute of Marine & Environmental Law, UCT, Cape Town, South Africa IN SEARCH OF EQUITY Loretta Feris Institute of Marine & Environmental Law, UCT, Cape Town, South Africa Loretta.feris@uct.ac.za

Africa’s particular vulnerability: Biodiversity & CC Mega droughts – longer and more severe Rights to life, food, water, environment Food security Rights to life, health, housing, environment, culture Flooding Housing Oceanic acifidifcation and depletion of fish stocks Trade Rights to livelihood, environment Rights to livelihood, environment , culture Tourism Depletion of wild life resources

Countries by carbon dioxide emissions

Per capita emissions – including land-use

Background Briefing: International Climate Change Issues, National Press Club (Canada), 19 September 2007, Pew Centre on Global Climate Change, www.pewclimate.org

Historical emissions Luxury emissions

3 regimes The multilateral environmental regime UNFCCC + Kyoto Protocol + ?? The multilateral trade regime Emissions trading Domestic response measures The human rights regime

multilateral environmental regime

So where are we? Common but differentiated responsibilities?? adaptation Emissions cuts & global temps: 1.5% versus 2 % Common but differentiated responsibilities?? Finance for mitigation, adaptation, CP & Tech transfer Global reduction by 2050?

Multilateral trade regime

Domestic response measures Subsidies Carbon taxes and Border Tax Adjustments

Subsidise renewable energy sector Subsidies Subsidise renewable energy sector BUT Only rich governments can afford subsidies $Billion bail-outs to CO2 intensive industries such automotive industry

Carbon Taxes Energy intensive industries: carbon tax levied against products that emit carbon during the production process Concern : Competitiveness effects: price advantage for firms located in countries with less stringent environmental policies Carbon leakage: risk of energy-intensive industries to relocate to countries with weaker environmental (carbon) policies

African countries do not have mitigation obligations Border Tax Adjustment Levy BTA on imported goods Apply destination principle, i.e. goods taxed in country of consumption How? application of a charge or tax on a carbon intensive product which is being imported into the country where a carbon tax is already levied against the like domestically produced product and/or its inputs Require foreign exporters to purchase emission rights for the carbon content of their goods African countries do not have mitigation obligations Good will attract BTAs In addition to competitive effects of massive subsidies and market access constraints of technical barriers

Human rights regime

CC & the moral challenge CC has first and foremost human consequences Those who are already vulnerable will be impacted disproportionately Those likely to suffer most from the impacts of climate change are those who have contributed least to the problem Does the human rights framework provide solutions for the moral dilemma? but

Link between CC & Human Rights S24 African Charter: All peoples shall have the right to a general satisfactory environment favourable to their development S24 SA Constitution: Right to an environment that is not harmful to human health and well-being

The obstacles Inuit petition targeted US as biggest historical emitter Linking a specific impact, i.e. the increase in the incidences and severity of droughts and floods in Africa to the historic emissions of one or more specified countries Almost impossible to completely rule out other causes (including natural) that contribute to events like droughts and floods – cannot accurately label an event as being caused by human-induced climate change Most CC impacts relate to future impacts Allocating responsibility according to a State’s share of GHG emissions Improved scientific knowledge on underlying causes But some communities already experiencing adverse impacts Scope for litigating on behalf of future generations?

BUT– we should also keep in mind The international HR system imposes extraterritorial duties to “refrain from interfering with the enjoyment of human rights in other countries” to take measures to prevent private actors from engaging in such interference to take steps through aid and cooperation “to facilitate fulfillment of human rights” abroad and Interpretation of ICESCR by Committee on ESCR

Alternatives to litigation A HR approach to CC negotiations focuses the debate on people (individuals and communities) Strategic HR intervention in CC negotiations - Advocacy tool for vulnerable groups and communities to influence negotiations Inclusion in CC negotiations instilling a heightened awareness of HR implications

Implications – domestic level

Implications at domestic level States have a duty to protect their people from threats to human rights even when the states are not directly responsible for those threats Adaptation Mitigation obligations - NAMAs Regulate corporate behaviour, including multinationals, SOEs

Conclusion HR not a panacea HR litigation – requires innovative thinking CC negotiations may indirectly be influenced by infusing it with HR dimension