Author: Sandile Innocent Nhlengetwa
LLB candidate, University of the Western Cape
Climate change is the greatest threat to mankind as it poses a major threat to the survival of humans on earth. It has a negative impact on the prospects of economic and social prosperity of any nation. South Africa has over the years witnessed a number of her citizens; particularly poor susceptible groups being severely affected by the impacts of climate change. Most recently, the Kwazulu-Natal floods did not only displace indigent people it also led to the loss of lives. The South African government turned a blind eye to this and has been the slowest to react. Two months after the floods occurred, the government is yet to allocate satisfactory financial and human resources to redress the situation. This can be partly linked to the absence of a legislative regulatory framework which provides for an effective, clear and comprehensive response to climate change in order to minimise its impact. Currently, climate change is regulated in a piecemeal manner. Since the Constitution was adopted, an overwhelming number of statutes of environmental nature were enacted including the National Environmental Management Act 107 of 1998 and the National Environment Management: Air Quality Act 39 of 2004. Though both these statutes do not refer to climate change in explicit terms they require the environment to be utilised in a sustainable manner that is not harmful to human beings and regulate the emission of greenhouse gases respectively. Worth mentioning, however, is the Carbon Tax Act 15 of 2019 as well as the Disaster Management Act 57 of 2002 both of which have a direct bearing on climate change. The latter Act is the legislative framework within which the government responds to the impacts of climate change. The former makes explicit reference to climate change in its efforts to avoid dangerous anthropogenic climate change by stabilising greenhouse gas emissions while also ensuring sustainable socio economic development.
Author: Elsabé Boshoff
PhD Fellow, Norwegian Centre for Human Rights, University of Oslo
Author: Samrawit Getaneh Damtew
Human Rights Advisor, GIZ Ethiopia and Djibouti
The UN Children’s Rights Committee (CRC) received its first Communication on climate change-induced child rights violations in Sacchi, et al. v. Argentina, et al. In its admissibility decision, the CRC confirmed that climate change has child right impacts and states have extraterritorial responsibility for harmful effects of emissions. However, the Committee declared the Communication inadmissible for failing to exhaust local remedies. In their article on AfricLaw, Muhumuza and Wepukhulu argue that this decision was the right one. We argue why the Communication should have been admissible.
Criteria for exhausting domestic remedies
The above-mentioned article argued that the decision is in line with the settled rules of exhaustion of domestic remedies. While this may be a general rule, it has exceptions. The CRC Optional Protocol in article 7(3) provides that exhaustion of local remedies is not required where the remedy is “unreasonably prolonged or unlikely to bring effective relief”.
The ball is in our court: Why the UN Children’s Rights Committee decision on climate change was the right one.Posted: 24 January, 2022
Author: Nimrod Muhumuza
LL.D. candidate, Dullah Omar Institute, University of the Western Cape
Author: Khatondi Soita Wepukhulu
Reporter, openDemocracy, Uganda
In a ground-breaking decision, the UN Children’s Rights Committee recently found that states are legally responsible for the harmful effects of emissions originating in their territory on children outside their borders. The fact that climate change is a global problem does not absolve individual states of their responsibility to reduce their share of emissions. Nonetheless, it found the authors’ complaint inadmissible for failure to exhaust local remedies. The decision was welcomed in some quarters and criticised in others.
The rules on exhaustion of local remedies within public international law and international human rights law are settled. The requirement serves as a manifestation of a state’s sovereignty – that states should be allowed to deal with a claim brought against it using the judicial and administrative mechanisms within their domestic legal order. In human rights law, exhaustion of local remedies is premised on the principle of subsidiarity. The primary avenues for remedying human rights violations are states’ judicial, quasi-judicial and administrative bodies. Only when these domestic avenues are ‘objectively’ considered unavailable, ineffective, unduly burdensome or only obtainable after inordinate delays can the complainants turn to international human rights mechanisms for recourse.
The Global Compact on Refugees: A breakthrough opportunity in addressing the protracted refugee crises in East AfricaPosted: 4 October, 2019
Author: Juliet Nyamao
Human Rights Attorney, Kenyan Bar
In recent years, the world has witnessed an explosive increase in the number of refugees and internally displaced persons. The upsurge in forced displacement has increased the demand for humanitarian assistance and strained the limited resources of host nations, majority of which are developing economies. The resulting economic strain compelled the international community to develop sustainable mechanisms for protecting refugees and displaced persons in alignment with the 2030 Agenda for Sustainable Development. Read the rest of this entry »