“Environmental law offers us a glimmer of hope going forward, especially for the world’s most vulnerable. The adoption of the right to a clean, healthy and sustainable environment is a turning point and a game changer for the acceleration of actions on climate and environment,” Patricia Kameri-Mbote told participants of a conference on ‘environmental law from below’ last month.

The director of the Law Division at the UN Environment Programme was referring to the UN General Assembly’s agreement in July this year that the “right to a safe, healthy and clean environment” is a universal human right. Just eight countries abstained and zero voted against the resolution, giving the historic ruling strong legitimacy.

Fifty years earlier, the UN Conference on the Environment had established for the first time principles of good global environmental governance – a gamechanger for the environmental movement. As in 1972, July’s resolution has opened up large opportunities for grassroots activism on environmental protection.

Held on 27 September at the University of Nairobi, Kenya, the one-day conference saw researchers, lawyers, journalists and students from Kenya, Zimbabwe, Ghana, China and elsewhere discuss environmental rights, litigation, just transitions and the potentials and pitfalls of emerging cooperation between developing countries.

The event was co-organised by the University of Nairobi Law Department, China Dialogue and the Raoul Wallenberg Institute.

The challenge of implementation

The recognition of environmental rights at the UN level provides new opportunities for legal action and for holding polluters and governments to account for the negative environmental impacts of their actions and decisions. These rights are a tool for civil society and vulnerable communities around the world, such as those living in precarious social and economic situations, women and indigenous peoples. In the context of the triple crises of climate, biodiversity and pollution, the ruling could not have come at a more critical time.

Environmental rights are enshrined in the African Charter and the Kenyan Constitution, said Robert Kibugi, senior lecturer in law at the University of Nairobi. But, he added, the enshrinement of rights is only the first step in providing protection to vulnerable communities. The implementation of these legal rights faces major obstacles. Legal cases are expensive and time consuming, often putting them out of reach of impacted communities. They require knowledge and literacy, another barrier to access.

Adding to this, Frank Mpahlo, executive director of the Green Governance Zimbabwe Trust, pointed out that understandings of environmental rights often differ between communities, government and business, creating conflict and disagreement. In fact, Zimbabwe’s landmark 2013 constitution also recognises the right to a clean environment, but “regardless of all the laws being in place, we just don’t see it in practice”, he told the audience.

“Environmental law offers us a glimmer of hope.” Patricia Kameri-Mbote, director of the Law Division at the UN Environment Programme, at the conference last month (Image: RWI)

“Regardless of the laws being in place, we just don’t see [a clean environment] in practice.” Frank Mpahlo, executive director of the Green Governance Zimbabwe Trust (Image: RWI)

Education and awareness building is required to counter this. Li Fung, senior human rights advisor to the UN resident coordinator in Kenya, emphasised the role of public participation and the civic space in forming a culture of environmental rights. In Kenya, public participation is recognised as a value of governance in the constitution. Kenya has seen a number of landmark environmental litigation cases in recent years that demonstrate this, including the successful cases against the Lamu coal power plant project in 2019 and in response to lead poisoning from a battery recycling plant in Mombasa in 2020.

Kibugi noted, however, that the strength of environmental litigation as a tool for environmental justice in Kenya should not be viewed as a simple success. The role of the law and litigation is as a final line of defence against malpractices. Over-reliance on legal tools indicates negligence on the part of legislators and the implementers of legislation.

Justice and transition

The discussions also highlighted the relevance of environmental rights and justice to economic and social transitions, which are central to how the world responds to the climate, biodiversity and pollution crises.

Transitions touch whole communities. For example, the closure of coal power plants and mines affects not only the direct employees of those projects, but also the shops, services, cultures and livelihoods that have been built up around them. Large transitions will lead to winners and losers. We should be aware of how and, critically, for and by whom the concept of “just” is being defined. These issues need to be considered now in order to ensure the most vulnerable in society do not lose again as our societies and economies undergo transitions. One participant noted that, while the global energy transition is picking up momentum, too many green investments are replicating the extractive logic that has shaped coal and hydropower development in Africa and elsewhere over the last century. If not addressed, this will see the benefits of the new energy generation models unevenly distributed, to the detriment of communities’ environmental rights.

Kibugi pointed out that transitions also require new modes of thinking about development. For example, Article 24 of the 1981 African Charter on Human and Peoples’ Rights speaks of the “right to a general satisfactory environment favourable to [people’s] development.” Too often across the continent this has set up a binary between environment and development, which “falls prey to politics”. This is not a useful starting point, he argues. Instead, we should recognise the symbioses of economic development and the maintenance of ecosystems. An African protocol on the human right to a clean and healthy environment could reset the equation.

Seeking justice in new modes of development cooperation

Over the last decade, the prospect of South–South cooperation on development, climate and environmental issues has risen up the agenda for countries in the Global South. It proposes that cooperation can come from fellow developing countries, whose recent experiences bear similarities and, therefore, greater potential learning opportunities. The involvement of China as an emerging development actor has been particularly prevalent.

However, the promise of a South–South alternative with less hierarchical relations and greater respect for ownership and rights has proven problematic. The involvement of powerful corporate actors, in particular, has presented a very uneven playing field between project developers and local communities. Responding to these issues, civil society in Global South countries has begun to focus more on the operations of new development actors, such as China, aiming to hold to account the various stakeholders, encourage transparency, and ensure legal processes and best practices are followed in regards to community and environmental rights. Increasingly, this is also involving direct engagement with stakeholders such as Chinese embassies and construction companies, with some examples of productive engagement.

Knowledge and information on China as a development actor is fragmented, however, posing barriers to effective engagement by local communities and civil society. For one, China is too often seen as an exception and an outlier when it comes to development cooperation. In reality, Chinese stakeholders often behave in similar ways to their counterparts in the OECD (Organisation for Economic Cooperation and Development), and indeed build on and learn from the frameworks and norms laid down by others.

Looking at China’s rise as a development actor in isolation can also lead to understanding it through unexamined catchphrases and concepts – whether “debt-trap diplomacy” or “win–win cooperation”. A better way might be found in emphasising how China and its people form an integral and interconnected part of global capitalism. This approach, explored in a recent book “Global China as Method” puts greater emphasis on grassroots perspectives on Chinese investments abroad, and suggests new ways that people in recipient countries might access information and navigate complex decisions.

Questions of environmental rights, justice and South–South cooperation will be major themes at this year’s upcoming UN conferences on climate change and biodiversity, headed by Egypt and China, respectively.

Current emissions reduction plans will lead to an average global temperature rise of 2.4–2.6C by 2100, far above the 1.5–2C limit agreed upon by governments in Paris seven years ago, according to the UN Environment Programme (UNEP).

A new report by UNEP outlines its annual assessment of commitments made by governments towards meeting the 2015 Paris Agreement. These “nationally determined contributions” (NDCs) spell out each country’s emissions reduction targets and how they intend to achieve them. The plans remain “woefully inadequate”, it concluded.

Fourteen countries have submitted new or updated NDCs since the last UN climate talks at COP26 in Glasgow 12 months ago, in addition to the 152 that did so in the months preceding that event. Relative to the first round of NDCs, a larger share of plans included targets to cut greenhouse gas emissions and a greater number of economic sectors and greenhouse gases were included, UNEP said.

However, measures in these documents remove only 0.5 gigatonnes of CO2 equivalent – less than 1% – from projected global emissions in 2030, UNEP’s assessment found. This progress resulted mainly from the updated plans submitted by Australia, Brazil, Indonesia and South Korea, it said. International climate scientists have stipulated that a 45% cut is needed to reach the 1.5C target, while a 30% cut would leave us with 2C average warming.

If all NDC commitments made by countries that don’t require extra finance or technology support are implemented, then warming can be limited to around 2.6C by 2100, UNEP said. This can be reduced to 2.4C if less developed nations’ NDCs are implemented too. These are often conditional on receiving support from richer countries.

Current policies alone would lead to a 2.8C rise in global average temperature, which UNEP said highlights the implications of the gap between promises and action.

Warming and greenhouse gas emissions projectons to 2050 (Gigatonnes of CO2 equivalent)

Source: UNEP Emissions Gap Report 2022

Richer nations in the G20 group, which are responsible for 75% of global emissions, are not on track to achieve targets set in their new or updated NDCs, UNEP said. Most have only just begun to implement their plans, and need to put in place additional policies, it added.

In a best-case scenario, full implementation of both unconditional NDCs and high-level commitments to achieve a net zero economy by 2050 will keep warming within a 1.8C rise, UNEP added. It did not believe that this scenario was currently credible due to the discrepancy between current emissions, short-term NDC targets and long-term net-zero targets.

Action too slow

A separate report published by the UN Framework Convention on Climate Change (UNFCCC), which runs the UN’s climate action including the international negotiations, mirrored UNEP’s conclusions. Its report analyses the impacts of measures contained in NDCs and highlights trends in climate action.

It found that the combined effects of measures in NDCs would increase emissions by 10.6% by 2030, compared to 2010. This is an improvement on last year’s assessment, which estimated a rise of 13.7%.

Last year’s conclusion was that emissions would continue to increase beyond 2030. This was no longer the case, the report said. However it cautioned that emissions are still not demonstrating the rapid downward trend science says is necessary this decade.

Almost all of the NDCs outlined energy supply, transport, buildings, industry, agriculture, land use change and waste as areas for emissions reduction. NDCs proposing action to decarbonise industry were less common than those for other areas, despite being the second largest source of global greenhouse gas emissions with the second highest annual emissions growth rate.

The most frequently mentioned measures to reduce emissions were renewable energy generation (88%), with the share of NDCs indicating this option sharply increasing since previous NDCs from 59 to 91%. This was followed by improving the energy efficiency of buildings (70%), and afforestation, reforestation and revegetation (54%).

Around half the NDCs considered the benefits of certain measures for both adaptation and mitigation. For example, afforestation and reforestation both absorb carbon dioxide and prevent flooding and soil erosion. Other cross-cutting actions proposed in NDCs included reducing food waste, vertical farming, nature-based solutions and moving to a more circular economy to reduce waste.

There were also an increasing number of NDCs targeting ocean-based climate action. Around 26% of countries include an ocean-based climate target, policy or measure, though more of these relate to adaptation than to mitigation.

Coal phase out

Of the countries that submitted new or updated NDCs since the climate talks in Glasgow last year, there was a rise in the number proposing measures to phase down unabated coal power generation and phase out inefficient fossil fuel subsidies, which countries agreed to do in the Glasgow Climate Pact.

Proposed measures included replacing coal-fired power plants with combined-cycle gas power plants and gradually phasing out subsidies on electricity and fuels in tandem with social protection measures for low-income households.

Tom Evans, policy advisor on the geopolitics, climate diplomacy and security programme at think tank E3G said it was important that some NDCs reflected the pact’s commitments, but what really mattered was how the real economy shifted to drive transformations at pace.

“It’s clear that’s not happening fast enough to limit warming to 1.5C. Political signals from governments are one thing, but it’s another to unlock the crucial finance needed to actually accelerate the implementation of those goals. This must be a crucial area of attention from governments at COP27,” he said.

Evans pointed to a separate report released in the run-up to COP27, which concluded that action on the ground was far too slow. A global coal phase out needs to happen six times as fast, while public financing for fossil fuels should be phased out five times quicker than they are now, it said.

The report, by organisations including the Bezos Earth Fund, Climate Action Tracker, the UN Climate Change High-Level Champions, and the World Resources Institute, also revealed that only 15 of the 119 countries that signed the COP26 Global Methane Pledge include a specific, quantified methane-reduction target in their NDCs.

Senior fellow at the World Resources Institute Taryn Fransen said: “To come to grips with the climate crisis, we must seize on major opportunities that are still on the table. The European Union, Chile, Mexico, Turkey and Vietnam have all signalled they will strengthen their targets before the end of the year.”

If China were to set a concrete target to cut methane emissions, that would have a notable impact on the global temperature trajectory, she added. The US, which took a massive step forward by passing the Inflation Reduction Act, needed action by both federal agencies and state governments to implement it, she added.

Greenhouse gases still rising

Atmospheric levels of the three main greenhouse gases – carbon dioxide, methane and nitrous oxide – all reached new record highs in 2021, according to the World Meteorological Organization (WMO). Its Greenhouse Gas Bulletin, published last week, stated that the increase in CO2 levels from 2020 to 2021 was larger than the average annual growth rate over the last decade.

It also reported the biggest year-on-year jump in methane concentrations in 2021 since systematic measurements began nearly 40 years ago. The reason for this exceptional increase is unclear but seems to be a result of both biological and human-induced processes, it said.

“There is no good news from the perspective of the atmosphere,” said WMO secretary general Petteri Taalas. The organisation will soon publish new findings on climate change impacts, all of which are also negative, according to Taalas.

“Twenty years ago, sea level rise used to be about two millimetres per year, but recently we have seen 4.5mm sea level rise,” he said. A growing component of this is from glacier melt, he added.

Inger Anderson, UNEP’s executive director, said that countries had their chance to make incremental changes. “That time is over. We’re sliding from climate crisis to climate disaster. Only a root-and-branch transformation of our economies and societies can save us from accelerating climate disaster.”

The electricity, transport, food and industry sectors all needed immediate and transformative change, she said. Anderson also advocated reform of the financial sector, including introducing carbon pricing, shifting financial flows to low carbon technology, and more concrete regulation to make central banks act on climate change.

“I know that some people think this can’t be done over the next eight years, but we can’t just throw our hands up in the air and say that we failed before we even really try – every fraction of a degree matters to vulnerable communities,” she added.

Every government should build the solutions in the report into their climate commitments and back it up with real finance, while those that are donors need to put money on the table to help poorer nations, she said. Private sector companies should rework their practices, and every investor needs to put their capital towards a net zero world, she added.

“This is how we can jam open that closing window for climate action, and this is how we can start to change our world for the better for everyone,” she said.