1. 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

2. 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

3. Countries by carbon dioxide emissions

4. Per capita emissions – including land-use

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

6. Historical emissions
Luxury emissions

7. 3 regimes The multilateral environmental regime
UNFCCC + Kyoto Protocol + ??
The multilateral trade regime
Emissions trading
Domestic response measures
The human rights regime

8. multilateral environmental regime

9. 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?

10. Multilateral trade regime

11. Domestic response measures
Subsidies
Carbon taxes and Border Tax Adjustments

12. 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

13. 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

14. 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

15. Human rights regime

16. 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

17. 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

18. 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?

19. 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

20. 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

21. Implications – domestic level

22. 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

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