Category: Research

Protecting African Rosewood through international law

Author Faculty of Business and Law | Posted on

By Nelly Kennedy Burke (2nd Year LL.B. Student)

African Rosewood under CITES: conservation, trade and compliance

The international trade in endangered species presents a significant challenge for environmental law. The Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES)1 aims to ensure that international trade in wild animals and plants is legal, sustainable and traceable, and does not threaten the continued survival of species in the wild.2

Pterocarpus erinaceus, commonly known as West African Rosewood, provides an important case study for examining the effectiveness of this international framework. CITES came into force in March 1973 and the species has been regulated by CITES since 2017. It appears in Appendix II, which regulates logs, sawn wood, veneer sheets, plywood and transformed wood.6 African Rosewood has multiple uses, but demand for traditional Chinese furniture has been the primary driver of trade in recent years.7

Prior to its regulation, African Rosewood was the world’s most traded tropical hardwood by volume, making it a significant test case for CITES.8 Generally, effectiveness has been mixed due to the emergence of sophisticated smuggling networks, which significantly threaten the survival of the species.9 This raises questions about the limitations of CITES and its ability to regulate trade where national enforcement capacity is limited.

This article explores these issues through an evaluation of Articles IV, VIII and XIII of CITES.

Effectiveness of CITES: Articles IV, VIII and XIII

First, Article IV governs the trade of species in Appendix II.10 Under Article IV(2), state scientific authorities must first produce a Non-Detriment Finding (NDF).11 This theoretically enhances the effectiveness of CITES in relation to African Rosewood because states, by producing an NDF, must prove that trade will not negatively affect the species. However, NDFs are rarely scrutinised and may be based on weak data.12 Consequently, harmful trade may continue, which undermines CITES protection for African Rosewood.

The second requirement of Article IV(2) is that State Management Authorities must provide a ‘Legal Acquisition Finding’ (LAF) to ensure that specimens have been obtained in accordance with national laws.13 This could increase CITES’ effectiveness because it aims to address the issue of illegal felling. However, in practice, LAFs are easily bypassed. For example, in 2022 Gambia had a total export ban on African Rosewood, yet trade continued because smugglers merely misdeclared shipments.14

On balance, the Secretariat identified Ghana, Mali and Sierra Leone as having made significant progress at a workshop for West African States, highlighting the feasibility of increased CITES compliance.15 Article IV(4) requires that exit permits must be checked by the receiving state.16 However, data from 2020 indicates a vast discrepancy between reported quantities exported by West African nations and received by China for Hongmu furniture.17

This suggests that Article IV’s traceability mechanism fails in practice because the West African region has limited means to verify exit permits or detect misdeclared shipments, which significantly limits the effectiveness of CITES protection of African Rosewood.

Next, Article VIII covers enforcement, confiscation and reporting by parties.18 This is effective because the threat of confiscation may deter illegal loggers. However, some fines are reportedly less than the value of the wood, highlighting the difficulty in overcoming compliance gaps as a result of regional instability.19 Therefore, Article VIII is weakened because challenges such as inadequate funding and limited technical resources impede states’ ability to closely follow reporting obligations, which reduces African Rosewood protection.

Lastly, Article XIII sets out international enforcement measures for addressing non-compliance.20 Article XIII(1) holds that where the Secretariat deems that the Convention is not being implemented, it will notify the affected parties of implementation shortfalls.21 This enhances the effectiveness of CITES because the approach gives states a chance to independently enhance their compliance. For example, Senegal amended domestic legislation in response to Secretariat concerns under Article XIII(1).22

However, other West African states, such as Gambia, have failed to implement permanent legal protection, suggesting that Article XIII(1) only functions where political will already exists.23 Under Article XIII(3), states that have received notification can present findings at the Conference of the Parties, which may suggest further recommendations.24 This increases the effectiveness of CITES because scrutiny may cause economic and reputational damage, which incentivises compliance.

Article XIII is then complemented by ‘Review of Significant Trade’ (RST), which limits non-complying states.25 In 2024, eight West African states were under RST.26 This appears effective for the protection of the species because other parties to the Convention may not trade with identified RST states. However, Rosewood-exporting states have seen continued large volumes of unlawful trade to China.27

While this demonstrates that CITES can identify problematic trade and exert a degree of pressure, such pressure is limited because it depends entirely on voluntary compliance, which renders Article XIII largely symbolic.28 Therefore, Article XIII exposes the limits of voluntary compliance mechanisms in politically unstable regions.

Overall, Articles IV, VIII and XIII reveal significant structural limitations within CITES because each provision assumes a baseline of administrative capacity and political will, which is absent in many West African states.29 While the Convention provides theoretically robust safeguards, its effectiveness in regulating African Rosewood is fundamentally limited without meaningful enforcement mechanisms.30 Consequently, the CITES framework becomes ineffective where governance issues enable continued exploitation.

Strengthening the CITES framework

First, Article IV should be reinforced through independent verification of NDFs and LAFs in high-risk regions. Many West African states lack reliable forest inventories and face widespread document fraud, meaning national authorities alone cannot guarantee credible assessments.31 External auditing would increase accountability and reduce opportunities for manipulation.

Secondly, Article VIII enforcement should be strengthened by encouraging states to adopt targeted anti-corruption measures to facilitate confiscation and penalise illicit traders. In several states, fines for illegal shipments are lower than the value of the wood, creating incentives for continued exploitation.32 Introducing randomised inspections and transparent reporting requirements would help reduce bribery and improve traceability.

Finally, Article XIII could be made more effective by enabling the Secretariat to conduct a species-wide compliance review because there has been extensive non-compliance despite RSTs.33 For states that repeatedly fail to meet obligations under Articles IV and VIII, parties should consider whether uplisting African Rosewood to Appendix I is necessary to curb ongoing illicit trade, as Appendix I protection of Brazilian Rosewood has been very effective. While not a complete solution, this would raise the evidentiary threshold for legal exports and signal a stronger international commitment to protecting the species.34

Ultimately, without addressing governance failures and enforcement gaps, CITES will remain structurally limited in its ability to protect African Rosewood.

References

1. Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) (adopted 3 March 1973, entered into force 1 July 1975) 993 UNTS 24.
2. Ibid; What is CITES, https://cites.org/eng/disc/what.php accessed 25 June 2026.
3. CITES (n 1) Appendix I.
4. Ibid, Appendix II.
5. What is CITES (n 2).
6. CITES (n 1), ‘Leguminosae’, Appendix II.
7. UNODC, World Wildlife Crime Report 2020: Trafficking in Protected Species (UNODC, 2020), 38.
8. CITES (n 1).
9. Bandoh WKN, Adjonou K and others, ‘Towards Sustainable Management of African Rosewood in West and Central Africa: A Scoping Review of Current Research’ (2022) 24 International Forestry Review 129, 130.
10. CITES (n 1), Art IV.
11. Ibid Art IV(2)(a).
12. CITES Secretariat, Report on the Conservation and Trade of CITES-Listed Rosewood Tree Species [Leguminosae (Fabaceae)] (PC27 Doc 27, 2024), https://cites.org/sites/default/files/eng/prog/Rosewood_2024/CITES_Rosewood_report_2024_EN.pdf accessed 20 March 2026, 1, s2.3.1.
13. CITES (n 1), Art IV(2)(b). | State Management Authorities are national government bodies, who issue permits, ensure the species was obtained lawfully and record trade.
14. J Skrdlik, ’Gambia Bans All Timber Export’ (Organised Crime and Corruption Reporting Project, 2022) https://www.occrp.org/en/news/gambia-bans-all-timber-export accessed 1st April 2026.
15. CITES, Regional Workshop for Range States of African Rosewood (Pterocarpus Erinaceus), Cameroon, March 2024, <www.cites.org/sites/default/files/eng/prog/Rosewood_2024/2_African_rosewood_Background_document_EN.pdf> accessed 4th March 2026, 6.
16. CITES (n 1), Art IV(3).
17. Environmental Investigation Agency, Red Alert: Regional Rosewood Crisis Hits Malian Forests and People, (EIA, March 2022) <www.eia.org/wp-content/uploads/2022/03/EIA_US_Mali_Rosewood_Briefing_Report_0322_FINAL.pdf> accessed 15 March 2026, Fig 3.
18. CITES (n 1), Art VIII.
19. UNODC (n 7) 43.
20. CITES (n 1), Art XIII.
21. CITES (n 1), Art XIII(1).
22. Loi n°2018-25 du 12 Novembre 2018 Portant Code Forestier [Senegal Forestry Code] (12 November 2018) https://www.archives.sn/docs/lois/loi-n-2018-25-portant-code-forestier-6138 accessed 20 April 2026.
23. Baidoo A, Méral P and Ongolo S, ‘Global China Effects and Domestic Politics of Rosewood in Africa: A Realist Review’ in S Ongolo and M Krott (eds), Power Dynamics in African Forests (1st edn, Routledge 2024) Chapter 4, 98.
24. CITES (n 1), Article XIII(3).
25. CITES Notification to the Parties No. 2024/006.
26. CITES (n 1) SC79 Doc 6.2, November 2025.
27. C Costello, ‘China’s Appetite for Rosewood Is Causing Chaos in Africa’ Foreign Policy Magazine 2025, https://foreignpolicy.com/2025/09/09/rosewood-timber-africa-china-illegal/ accessed 20 April 2026.
28. Abdullahi A and Musa IG, ‘The Legitimacy of International Law: Challenges and the Emerging Issues’ (2023) 4 Journal of Global Social Sciences 14, 15.
29. Van den Bersselaar D and Decker S, ‘“No Longer at Ease”: Corruption as an Institution in West Africa’ (2011) 34 International Journal of Public Administration 74, 10-11.
30. C E Pavel, ‘The Ethics of State Consent to International Law’ (2025) 10 Global Constitutionalism 1, 5.
31. CITES Rosewood Report (n 12).
32. Environmental Investigation Agency, ‘The Rosewood Racket China’s Billion Dollar Illegal Timber Trade and the Devastation of Nigeria’s Forests’ (EIA, October 2017) https://static.us.eia.org/pdfs/Rosewood+Racket+Report+(High+Res).pdf accessed 20 March 2026.
33. Costello (n 27).
34. Biaou S, Gouwakinnou GN and others, ‘Insights from Analyzing Local Ecological Knowledge and Stand Structure for Guiding Conservation Actions for the Endangered Tropical Tree Pterocarpus Erinaceus. Poir’ (2023) 14 Trees, Forests and People.

College of Business and Law Research Showcase 2025

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This week, the College of Business and Law hosted a research showcase bringing colleagues together under UWE Bristol’s RISE Beacon ‘Enriching Culture, Place and Community’. In his welcome address, Professor Andrew Simpson, Interim Dean for Research and Enterprise and Dean and Head of the Bristol Business School, stressed the relevance of this Beacon to the research conducted within the College. He also pointed out that the broad range of topics reflected how much “we care about the community we live in” and the researchers’ desire to make a positive impact on the private and public sectors. 


The event featured rapid five-minute presentations across two panels. It was designed to foster collaboration and share research findings. Its intention was also to give researchers the opportunity to practice communicating projects concisely and clearly, a skill vital to making research accessible and understandable to the general public.

Panel 1: From responsibility to resilience: leadership, community and social transformation

The first panel explored leadership, responsibility and how communities navigate social transformation.

Marketing and psychology: bridging the gap between practice and academia

Dr Tom Bowden-Green opened with his work on marketing psychology and how individual differences shape people’s responses to marketing. He shared insights on social proof, his forthcoming book and the growing interest in turning this knowledge into revenue and commercial training.

Disqualification of directors and education requirements: supporting responsible directorship

Dr Neeti Shikha highlighted the pressures faced by UK company directors who have no formal training despite significant legal responsibilities. Her research uses behavioural economics to explore how targeted education could improve decision-making and reduce over-confidence, especially during periods of financial distress.

Enriching communities: leadership, liminality and liquidity

Professor Gareth Edwards drew on his book Community as Leadership to explore what we mean by community and the interaction between leadership and community. In this context, he stressed the importance of ethics, culture and place for communities. He emphasised the value of linking curiosity-driven and applied research and shared new conversations emerging from international partners.

Fostering community-led problem-solving

Dr Kay Galpin, Professor Carol Jarvis and Professor Hugo Gaggiotti presented a HEIF-funded project working with local authorities to trial new ‘design-thinking’ approaches that place residents, particularly under-represented groups, at the centre of service design. The aim is to shift power dynamics and embed empathy in decision-making despite resource pressures.

Informing justice – the Windrush scandal

Tamara Rundle, Associate Professor Rachel Wood and Professor Gerhard Kemp introduced research on the Windrush scandal. With many elder members of the Windrush community still without status and facing a difficult compensation system, the team is drawing on learning from international justice processes to inform the ongoing People’s Inquiry. Ms Rundle also reflected on the emotional weight of the work and the need for wider public storytelling.

Content creators and social media influencers’ mental health, wellbeing, and job performance

Dr Moya Lerigo-Sampson presented research on the mental health of influencers and content creators. Interviews show blurred boundaries between online and offline life and constant pressure to remain visible. The team is also exploring how digital communities can either support or strain wellbeing.

Panel 2: Justice, inclusion and lived experience: research for social change

The second panel focused on social justice and inclusion across policing, family law, higher education and public events.

Evaluating police responses to sexual violence against sex workers; reflections on multi-agency partnership working, problem solving and co-production

Associate Professor Duncan McPhee discussed a collaborative project with Gwent Police to understand police responses to violence against sex workers. Trust-building was central to the work, which included joint meetings, workshops and a major conference supported by HEIF funding.

Peace for children in our time? Why we need to increase our understanding of domestic abuse and work together

Emma Whewell highlighted the shocking statistic that one in five children experience domestic abuse, often with long-term effects on behaviour and wellbeing. She stressed that domestic abuse is frequently misunderstood, including within the judicial system. Her work has led to the creation of a new advisory group and training for judges and social workers.

The impact of hybrid working on Black women academics: productivity and visibility in post-COVID higher education

Dr Tinkuma Edafioghor shared findings from interviews with Black women academics navigating hybrid working post-Covid. Many described the pressure to hold everything together which feeds into the stereotype of ‘the strong back woman’ and managing cultural expectations and the challenges of visibility and career progression.

Deaf legal studies: how law understands, or fails to understand, deaf people

Dr Rob Wilks introduced his emerging field of Deaf Legal Studies, which explores how law often operates in ways that disadvantage deaf people. His work spans equality law, bilingual education and a recently launched Deaf Legal Association. He described the law as often ‘audist’ and emphasised the need for frameworks rooted in lived experience of deaf people.

Missing migrants: the psychosocial implications for their surviving families through the lens of Kübler-Ross’s five-stagemodel of grief

Dr Luke Eda presented research on families of missing migrants and how they navigate grief of their loved ones in ambiguous circumstances and with no closure. Using Kübler-Ross’s five-stage model, he explores how relatives find meaning and cope with ongoing uncertainty.

Making outdoor events more inclusive

Clare MacKay and Dr Ed Little closed the panel with research carried out on the experiences of people with dietary requirements at outdoor events. Feelings of anxiety and exclusion were common. The team’s work has influenced event organisers and attracted interest from industry press and festivals seeking to improve inclusion.

Future showcases coming up…

The showcase highlighted the breadth of applied and socially engaged research across the College. From director training to festival food, and from digital wellbeing to justice for Windrush families, the projects reflect RISE’s aim to enrich communities and support positive change.

For details of future showcases contact Sarah-Louise Weller or Noelle Quenivet.

Launch of Taxation, Human Rights and Sustainable Development: Global South Perspectives

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The Research in Public International Law Group (RIPIL) of Bristol Law School (UWE), in collaboration with the International, Environmental and Human Rights Research Cluster at the University of Derby, recently hosted a hybrid launch event for Taxation, Human Rights and Sustainable Development: Global South Perspectives (2025: Routledge). The event brought together leading scholars to discuss the themes and contributions of this new edited collection.

The session was opened by Dr Eghosa Ekhator, Associate Professor of International Environmental Law at the University of Derby, who introduced the aims and significance of the book.

This book examines how human rights can help shape fairer tax systems and support sustainable development in the Global South. Drawing lessons from countries across the Global South, the book explores how human rights ideas can guide the design of effective tax systems. It also argues for including human rights and sustainable development considerations in tax policies and laws.

Keynote speaker Professor Damilola S. Olawuyi SAN:

Professor Olawuyi delivered the keynote address, offering insights into how the book explains the links between tax systems, economic development and environmental sustainability. By focusing on the Global South, particularly Africa, the book provides a timely and necessary contribution to global debates on fairness, governance and sustainable development.

Professor Gerhard Kemp:

Professor Kemp, sustainability lead for UWE Bristol Law School, discussed how the complex issues of taxation, human rights and sustainability can be integrated into the law curriculum, noting that the book is a helpful guide and a valuable resource for research-led curriculum design. Kemp also connected the book’s central theme to current international priorities, including the G20’s theme for 2025: Solidarity, Equality and Sustainability.

Professor Chrispas Nyombi:

Professor Nyombi spoke about the book’s introduction, stating that it opens with a clear overview by the editors, who show the connection between taxation, human rights and sustainable development as a key area of study (Ekhator, Richards & Onyejekwe, p. 1). They argue that taxation is not just a way to raise money but an important tool for governments to meet their social and economic responsibilities. This perspective is especially important in the Global South, where the effects of colonialism and past economic exploitation have created inequalities that persist today.

Dr Adaeze Okoye:

Dr Okoye addressed the themes of the book, stating:

“Overall, the book presents many unique chapters that share the theme of tax and sustainable development. This book could be very helpful for teaching in these areas. Importantly, it fills a research gap by including Global South voices on tax, fiscal policy and human rights, using the language of sustainable development. Several of the themes in this book would be essential reading for government actors as they balance taxation with building infrastructure, promoting digital inclusion, responding to global organisations and meeting local needs. It serves as important reading for understanding tax and sustainable development and offers practical ideas that could help guide future policy.”

A thoughtful and inspiring discussion

Across the session, speakers explored how tax laws and policies can both shape and be shaped by human rights and why integrating human rights principles into tax governance is essential for achieving sustainable development. The conversation also highlighted the responsibilities of governments, the role of international standards and the importance of taxpayer trust and participation.

Closing reflections

Co-editor Dr Chisa Onyejekwe closed the event with her reflections on the discussions:

“We are grateful to all the editors, speakers and participants who contributed to a rich and stimulating event. The reviews and discussion highlighted the idea that human rights should play an important role in how governments raise revenue and design tax systems. For countries in the Global South, it should be an obligation to consider human rights in their tax policies and legislation, as they need a sustainable revenue source to meet their social and economic responsibilities, of which tax revenue is one.”

About the book

Taxation, Human Rights and Sustainable Development: Global South Perspectives looks at the relationship between human rights and taxation, showing how tax policies can either help or hinder human rights and what this means for sustainable development.

Using examples from countries across the Global South, the book highlights the benefits of including human rights in tax laws and governance. It covers topics such as compliance, redistribution, e-commerce, tax havens and the roles of key stakeholders in shaping fair and sustainable tax systems.

The book is recommended for researchers and practitioners working in law, human rights, taxation, governance and development.

The synergies between the Paris Agreement and the SDGs: An opportunity for national governments to achieve key climate targets

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Dr Noah A. Izoukumor, Member of the Environmental Law and Sustainability Research Group

Introduction

The Paris Agreement (PA) was adopted on the 12th of December 2015.[1] The central aim of the PA is to keep global temperature rise below 2 degrees Celsius above pre-industrial levels or even further to 1.5 degrees Celsius.[2] To achieve this aim, Parties to the PA made individual commitments through their Nationally Determined Contributions (NDCs). The ‘NDCs, are actions that Parties to the PA plan to undertake to address climate change’ at the national level.[3] Most of the initial NDCs made commitments to reduce emissions of greenhouse gases by 2030.[4]

 In 2015, the same year the PA was adopted, the United Nations also adopted the Sustainable Development Goals (SDGs) to replace the Millennium Development Goals.[5] The SDGs are 17 aspirational goals and 169 associated targets. The SDGs are also meant to be achieved by 2030.

In other words, both the PA and SDGs were adopted in 2015, and the targets and obligations were to be achieved by 2030.[6] This raises some critical questions about whether it is possible to align the obligations of the PA with key related SDGs, or is it possible to achieve key SDGs targets that are linked with the PA simultaneously since both targets are meant to be achieved by 2030?  On the contrary, it was argued that how the alignment of the PA with the SDGs is possible considering that the SDGs and the PA are two separate instruments.[7]  In this research blog, the aim is to briefly assess the possibility of the alignment between PA obligations with key SDGs, and the key benefits of such alignments at the national level.

Are there synergies between climate change and the SDGs?  

There is emerging research on the integration of climate change and the SDGs.[8]  Nerini and others elaborated on the possible alignment of climate change and SDGs. They acknowledged that in most countries, climate change and sustainable development remain separated.[9] According to them, ‘capitalizing on synergistic actions can enable both sets of objectives to be met more quickly, efficiently and effectively.’[10] 

Antwi-Agyei and Dougill investigated the alignment of SDGs and NDCs.[11] They examined NDCs submitted by 11 West African states and their link to key SDGs.[12] Their investigation shows the strong commitment of West African countries to food security which can be aligned with related SDGs.[13] They argued that this alignment provides opportunities for national development on the low carbon pathway.[14] 

Also, a critical assessment of the provisions of the PA and the SDGs unveils that there is a synergy between the PA and some of the SDGs. For instance, SDG targets 15.2 and 15:3 deal with combating desertification and sustainable management of all forests. These targets 15.2 and 15:3 of the SDG are related to Article 5 (2) of the PA, which emphasised sustainable forest management practices. Also, SDG targets 7:1 and 7:2 deal with the development of renewable energy. These targets have a direct link with Article 10 (1) (2) Paris Agreement which emphasised the development of technology.

The above examples show that there is a link between the PA and some key SDGs. The implication of the relationship between the PA and the key SDGs is that the achievement of the targets of the PA could lead to the achievement of related SDGs targets. So, the next question is what the likely benefits of the synergies between the PA and the SDGs are.  

The benefits of synergies between the PA and SDGs

The synergies between the PA and key SDGs present an opportunity to collaborate amongst key relevant climate change Ministries, Departments and Agencies (MDAs), and SDG implementation agencies.[15] Recent development in countries like Mexico, Colombia, and Vietnam show how MDAs and SDG implementation agencies can collaborate and implement key related targets in both SDGs and PA.

In 2017, three MDAs in Mexico collaborated to implement SDG and NDC targets.[16] The office of the President of Mexico, which is responsible for the SDG implementation, the Ministry of Environment and Natural Resources, and the National Institute of Ecology and Climate Change which are responsible for the NDC support close coordination of SDG and NDC implementation.[17] Also, in Japan, there is a well-coordinated institutional arrangement of SDG and NDC implementation. Relevant institutions for the implementation of SDG and NDC are led by the Global Warming Prevention Headquarters, chaired by the prime minister, including relevant cabinet ministers.[18] In Colombia, an Inter-Agency Commission is established to implement the Post-2015 Development Agenda.[19] In Vietnam, a National Council for Sustainable Development and Competitiveness Enhancement and a working group of the Council were established. These two organisations are to address key achievable SDGs that are linked to climate change.

Again, the nexus between the PA and key SDGs will enable key climate change-related MDAs to match budgets and channel funds to key priority areas such as the energy and forest sectors. This is exactly what the Mexican government did where MDAs were requested to match budget programmes to the top priority areas of SDG and national goals.[20]

However, there are key challenges to the alignment between PA and SDGs. First, climate change instruments and the SDGs agenda have their respective histories and already established implementation agencies in different sectors.[21] This means there are likely issues of functional overlap among ministries while implementing interlinkages. Second, the alignment could lead to a trade-off with perceived unaligned SDGs.[22] This means that national governments may give less attention to SDGs that are not directly linked to climate change obligations, such as SDG 4, which talks about free education.

Despite the likely challenges, it is argued that the benefit of aligning the PA and the SDGs cannot be overemphasised. The alignment presents an opportunity for national government agencies to collaborate, and channel funds to key related targets in both PA and key SDGs. The collaboration will enable both sets of objectives to be met more quickly, efficiently, and effectively.[23] 

References

[1]L Rajamani, ‘The Warsaw climate negotiations: emerging understandings and battle lines on the road to the 2015 climate agreement’(2014) 63(3) International & Comparative Law Quarterly 721-740; L Rajamani, ‘The Durban platform for enhanced action and the future of the climate regime’ (2012) 61 (2) International & Comparative Law Quarterly,  501-518.

[2] Article 2 UN General Assembly, United Nations Framework Convention on Climate Change/ Adopted at the COP 21 in Paris, France, 12 December 2015 FCCC/CP/2015/L.9/Rev.1 accessed 1st April 2022.

[3] FZ Taibi and S Konrad, Pocket Guide to NDCs under the UNFCCC (ECBI 2018) 1-2.

[4] For instance, the EU and its member states committed to a domestic reduction of 40% by 2030. See Intended Nationally Determined Contribution of the EU and its Member States (2015) available at  LV-03-06-EU INDC (unfccc.int)> Accessed  2nd April 2022.

[5]Millennium Development Goals and beyond 2015 < United Nations Millennium Development Goals > Accessed 6th April 2022.

[6] However, net zero emission is possible by 2050 and most countries have updated their NDCs in line with 2050 deadline. See The update of the nationally determined contribution of the European Union and its Member States available at EU_NDC_Submission_December 2020.pdf (unfccc.int) Accessed  7th  April 2022.

[7] Paragraph 55. UN General Assembly, transforming our world: the 2030 Agenda for Sustainable Development, 21 October 2015, A/RES/70/1.; K. Shamin and R Kibugi, ‘Brief on Sustainable Development Goal 13 on Taking Action on Climate Change and Its Impacts: Contributions of International Law, Policy and Governance’ (2017) 13 McGill Journal on Sustainable Development Law 183.

[8] P Antwi-Agyei and others, Identifying Opportunities for Coherence between the Intended Nationally Determined Contributions, and the Sustainable Development Goals:  The Case of ECOWAS Member States (Sustainability Research Institute School of Earth and Environment 2017) 5; The State of The World’s Forest, Forest Pathway to Sustainable Development, (Food and Agriculture Organization of the United Nations (2018) 100-107, available at < http://www.fao.org/3/I9535EN/i9535en.pdf > Accessed 2nd April 2022; Climate Change and SDG Synergy Conference, Background Paper Leveraging Climate Change and SDG Interlinkages: Country Experiences (TERI School of Advanced Studies for UN DESA 2019) available at < https://sustainabledevelopment.un.org/content/documents/22155Background_PaperTERILeveraging_Climate_Change_and_SDG_Interlinkages.pdf > Accessed 2nd April 2022 ; Food and Agriculture Organization of the United Nations,  Climate-smart agriculture Sustainable Development Goals, Mapping interlinkages, synergies and trade-off s and guidelines for integrated implementation (Food       and Agriculture Organization of the United Nations Rome, 2019) 84-101 available at<  http://www.fao.org/3/ca6043en/ca6043en.pdf  > Accessed 2nd  April 2022; V Masson-Delmotte,  T Waterfield and others (eds), Summary for Policymakers. In: Global Warming of 1.5°C. An IPCC Special Report on the impacts of global warming of 1.5°C above pre-industrial levels and related global greenhouse gas emission pathways, in the context of strengthening the global response to the threat of climate change, sustainable development, and efforts to eradicate poverty (IPCC 2018)  19 -20, available at https://www.ipcc.ch/site/assets/uploads/sites/2/2019/05/SR15_SPM_version_report_LR.pdf > Accessed 3rd April 2022.                

[9]  F Nerini and others , ‘Connecting climate action with other Sustainable Development Goals’ (2019) 2 (8) Nature Sustainability, 674-680 at 678.

[10] Ibid.

[11] P Antwi-Agyei and A Dougill, How best to align planning for Nationally Determined Contributions and Sustainable Development Goals:  West African Lessons (Sustainability Research Institute School of Earth and Environment 2018) 2.

[12] Ibid .

[13] Such as SDGs 1, 2, 6, 7, 13 and 15. Ibid .

[14] Antwi-Agyei and others (n 11).  

[15] M Bouyé, S Harmeling and NS Schulz , Connecting the dots: Elements for a joined-up implementation of the 2030 Agenda and Paris Agreement (Deutsche Gesellschaft für Internationale Zusammenarbeit 2018) 16; Sustainable Development Goal Knowledge Platform, Global Conference on Strengthening Synergies between the Paris Agreement and the 2030 Agenda for Sustainable Development: Maximizing Co-Benefits by Linking Implementation across SDGs and Climate Action (United Nations 2019) at 50 available at <https://sustainabledevelopment.un.org/climate-sdgs-synergies2019 > Accessed 6th April 2022.

[16]  Bouyé and others (n 15).

[17] Ibid.  

[18] Sustainable Development Goal Knowledge Platform (n 15).

[19] OECD, Opening of the Inter-ministerial Commission on OECD Affairs, Opening remarks by Angel Gurría OECD Secretary-General October 2019 – Bogota, Colombia.

[20] Bouyé and others (n 15) 48.

[21]Sustainable Development Goal Knowledge Platform (n 15).

[22] Sustainable Development Goal Knowledge Platform(n 15).

[23] Nerini and others (n 9).  

The UN Climate Change Conference 2021 in Glasgow – Success or Failure?

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Guest blog by Christina Schroeder, member of the Environmental Law and Sustainability Research Group

The UN Climate Change Conference in Glasgow (COP26) took place from 31 October to 12 November 2021, with more than 120 world leaders and over 40,000 registered participants attending.[1] The target of the conference was to accelerate actions to implement the goals of the Paris Agreement[2] and the UN Framework Convention on Climate Change.[3]

During COP26, countries reaffirmed the Paris Agreement goal limiting the global temperature rise to 1.5 degrees and reaching net-zero around mid-century.[4] This year’s extreme natural events also gave the conference more significance, with impacts of global warming becoming more obvious with floods, heat-waves and fires.[5] Before COP26, many countries updated their Nationally Determined Contributions (NDCs) for more climate protection.[6] The European Union, for example, entered these negotiations with several objectives such as cutting emissions, providing climate finance to developing and vulnerable countries with targeting 100 billion dollars per year, but also getting an agreement on the Paris rulebook for fixing transparency and reporting requirements.[7]

Against this background, the decisions taken at COP26 were accordingly viewed critically.

Many hoped for transformation to implement the goals of the Paris Agreement rather than the improvement discussed within COP26.[8] The Climate Conference in Glasgow should not be seen as a failure, but also not as a big success comparable to Paris.[9] Still, some important decisions in the fight against climate change were made. An important political, as well as climate policy decision, was the announcement of a collaboration between China and the US to reduce their emissions.[10] Another important decision was the agreement between more than 100 countries to reduce their methane emissions by 30% until 2030, as well as another agreement concerning the regeneration of forests made by over 100 countries having a total of 90% of the world’s forests together.[11] The global coal to clean energy transition also found big support from more than 40 countries during the negotiations.[12]

Progress can be determined, especially regarding the long-term view with credible delivery plans. Net-Zero target is an important part of this plan. At the last COP in Madrid in 2019, only 16% of the global GDP was covered by Net-Zero target, whilst now around 90% of global emissions are covered by this Net-Zero target with limiting climate warming to 2 degrees within potential reach.[13] Especially the Net-Zero target was supported in Glasgow for long-term efforts.[14] These decisions may be important, but they fell short of the expectations of many, also because many criticisms remained unresolved within COP26.

The final text of the COP26 includes further actions to curb emissions, more frequent updates on progress, and the idea of funding for low- and middle-income countries.[15] Nevertheless, there is a lack of stronger commitments to reduce emissions. The countries only agreed to phase down and not phase out coal[16], which seems disappointing in regard to the Paris Agreement’s goals.

Another point of criticism is the failure to agree on loss and damage finance. This includes supporting low- and middle-income countries with their pathway to decarbonisation, resilience, energy access, and economic growth at the same time.[17] The issue of climate finance is especially crucial for low-income countries being directly exposed to climate change and damages resulting from emissions they did not create.[18] Climate finance is important for helping these countries moving towards clean energy and away from fossil fuels as the cheapest way to keep energy costs down.[19] This means, in particular, that the vulnerable countries have to wait until COP27 where the issue of loss and damage finance should be progressed.[20]

There were less efforts on the short-term view for cutting emissions, although actions taken within the next 10 years are crucial, and an additional focus on near-term emission reduction would have been important too.[21] The NDCs are core to the COP framework and the immediate focus has also to be placed on countries strengthening their 2030 targets as the next few years would be the decisive period to reach the Paris Agreement’s targets.[22]

Apart from the political decision-making level, the climate summit was also very present in the media. Indeed, public awareness is necessary to achieve climate protection; therefore, results achieved during the climate change summit and reactions to it worldwide are important.  China as one of the big polluting countries in the world seemed to have ignored the sense of urgency.[23] In the US, President Biden is now trying to speed up climate change related measures by creating awareness amongst the citizens.[24] Russia still only aims to reach carbon neutrality by 2060, and as a fossil fuel superpower Russia is not willing to cut methane emissions up to 30% by 2030.[25] India as a developing country is taking initiatives to support the reduction in emissions, and also emphasising the urgency of climate change by announcing the goal of reaching Net-Zero by 2070.[26] Brazil’s largest problem contributing to climate change remains the deforestation of its immense rainforest; but the current political regime is not willing to take actions as President Jair Bolsonaro did not even show up to the climate summit.[27]

Following COP26, in addition to the decisions taken, it can be noted that there is still a long way to go to achieve the goals of the Paris Agreement. Countries are facing different problems starting off with political unwillingness for climate protection, not creating enough awareness amongst their citizens and also local circumstances such as poverty hindering the efforts to curb climate change . Nevertheless, if all the short-term and long-term commitments are implemented, it may still be possible to reach the targets set in Paris Agreement.[28]

[1] United Nations Climate Action, ‘COP26: Together for our planet’ <https://www.un.org/en/climatechange/cop26 > accessed 5 January 2022.

[2] Paris Agreement, 22 April 2016, in force 4 November 2016, C.N.92.2016. Treaties-XXVII.7.d (2015 Paris Agreement).

[3] General Assembly, Report of the United Nations Conference on Environment and Development (Rio Declaration), Rio de Janeiro 3-14 June 1992, A/CONF.151/26.

[4] United Nations Climate Action (n 1).

[5] Alejandra Borunda in National Geographic, ‘COP26 nears conclusion with mixed signals and frustration’ 12 November 2021 < https://www.nationalgeographic.com/environment/article/cop26-conclusion-mixed-signals-and-frustration> accessed 4 January 2022.

[6] Ibid.

[7] European Commission Press Release 13 November 2021 ‘COP26: EU helps deliver outcome to keep the Paris Agreement targets alive’ < https://ec.europa.eu/commission/presscorner/detail/en/ip_21_6021> accessed 4 January 2022.

[8] Tim Lord, Phil McNally ‘COP26 Review: Glass Half Full?’ 17 November 2021 <https://institute.global/policy/cop26-review-glass-half-full> accessed 5 January 2022.

[9] Ibid.

[10] Acciona ‘Conclusions From COP26: The Challenge of Doing Away With Coal’ <https://www.activesustainability.com/climate-change/cop26-conclusions/?_adin=02021864894> accessed 4 January 2022.

[11] Ibid.

[12] Ibid.

[13] Tim Lord, Phil McNally ‘COP26 Review: Glass Half Full? (n 8).

[14] Ibid.

[15] Ehsan Masood, Jeff Tollefson ‘COP26 hasn’t solved the problem: scientists react to UN climate deal’ 15 November 2021 < https://www.nature.com/articles/d41586-021-03431-4> accessed 4 January 2022.

[16] Acciona ‘Conclusions From COP26: The Challenge of Doing Away With Coal’ (n 10).

[17] Tim Lord, Phil McNally ‘COP26 Review: Glass Half Full? (n 8).

[18] Ehsan Masood, Jeff Tollefson ‘COP26 hasn’t solved the problem: scientists react to UN climate deal’ (n 15).

[19] Ibid.

[20] Tim Lord, Phil McNally ‘COP26 Review: Glass Half Full? (n 8).

[21] Ibid.

[22] Ibid.

[23] BBC ‘COP 26: How the world is reacting to the climate summit’ 06 November 2021 <https://www.bbc.com/news/science-environment-59036722> accessed 5 January 2022.

[24] Ibid.

[25] Ibid.

[26] Ibid.

[27] Ibid.

[28] Alejandra Borunda in National Geographic, ‘COP26 nears conclusion with mixed signals and frustration’ (n 5).

Stifling Access to Sanitation through Privatisation of Public Facilities in Ghana: The Cases of Human Rights and Dignity

Author Faculty of Business and Law | Posted on

Blog by Dr. Felix Nana Kofi Ofori, REACT Humanitarian Network, Oxford, UK. Former PhD student, Bristol Law School, UWE Bristol.

Human well-being, now and in the future, depends on a healthy environment characterised by access to safe sanitation in society. [1] This blog examines the challenges confronting majority of Ghanaians whose access to sanitation, is hindered by privatisation and limited provision of public facilities; and where these are available, they are exorbitantly expensive thereby stifling and violating the dignity and human rights of the people. [2]

Access to sanitation as a right, evokes controversies in international human rights jurisprudence compared to the conventional rights. However, it is no secret within the Ghanaian society, that majority of the citizenry in cities, regional centres, including the remotest communities of the country, lack access to sanitation. [3] Fundamentally, lack of access to sanitation is a violation of the human rights and dignity of Ghanaians; as enshrined in the International Covenant on Economic, Social and Cultural Rights (ICESCR), [4] as adopted by the United Nations General Assembly (UNGA), in 2010).[5] However, under Ghana’s liberalisation and privatisation agenda, which was promoted by the IMF/World Bank[6], majority of public toilet/latrine facilities in the country were privatised with a view  to enhance the efficient management and provision of services for the people. Furthermore, since all human rights are interdependent there is little doubt that access to sanitation is critical to achieving human dignity which is at the fore-front of protecting human health.[6a] [6b]

As society evolves so the ambit of rights grow to protect and promote the welfare and dignity of peoples globally, and particularly in this context, Ghana. Sanitation is crucially one area in which the dignity of most Ghanaians is violated because of the failure of successive governments to establish facilities to protect this right. [7] In its preamble, the United Nations Charter provides that “all human beings are born free and equal in dignity and rights. [8] Thus, there can be no realisation of human rights without respect for human dignity; therefore, sanitation should be given critical priority by the government in allocating budgetary and physical resources to ensure that Ghanaians gain access to effective sanitation services. The duty to establish sanitation and hygiene facilities in Ghana as other countries, spans three obligations- availability, accessibility and affordability. [9] 

First, availability means that the government establishes public sanitation facilities within reasonable distance of the people’s reach; whilst, ensuring that poorer communities are not denied access to sanitation for want of paying. [10] Second, accessibility, is defined by the WHO-UNICEF Joint Monitoring Programme and Water Supply, Sanitation and Hygiene, as a standard 30 minutes time for someone to go to and return from a sanitation facility. [11] Also, it is the responsibility of the government and local authorities to ensure that children and persons with disabilities coupled with the location of the sanitation facilities do not impede access to such services. Third, affordability, as a human rights criterion, requires that “access to sanitation facilities and services be made reasonably affordable to all peoples, especially in the poorer part of cities and deprived communities of a county”. [12] Whilst the UNDP sets a threshold of 3 per cent, that by the Organization for Economic Cooperation and Development is 4 per cent and that by the Asian Development Bank is 5 per cent respectively. [13] Despite the above established thresholds, the government and public agencies responsible for sanitation services in Ghana, continue to violate the right to sanitation; by failing, to adopt creative strategies to ameliorate any hardships pricing mechanisms impose on the people regarding access to sanitation services.

Strategically, the World Bank plays vital roles in the development of nations, especially Ghana, by offering financial and policy directions to help them improve their socio-economic services of which sanitation constitutes an integral part. Privatisation of water and sanitation services is one area in which the World Bank’s strategic guidance had created mixed consequences in Ghana. The World Bank opines that private participation in the sanitation services is beneficial to the state and its people because it introduces efficient and judicious management of services; and it secures the requisite funding to repair and maintain old infrastructures. [14] Conversely, larger parts of communities in cities and town throughout Ghana practise open defecation due to limited or non-availability of sanitation facilities. [15] The majority view is that privatisation not only stifles access to sanitation in further violation of the people’s dignity, but also breaches established obligations of governments to protect access to sanitation, as enshrined in International human rights law. [16] This resonates with the premise that economic and political expediencies coupled with national policies cannot be deployed by the government and its agencies to commit blatant illegalities concerning the implementation of privatisation agenda.

Primarily, the right to sanitation is considered as a private responsibility enjoining the individual to build his/her own latrine or pay to connect to the sewerage system; however, where individuals cannot afford to pay for this responsibility, the state has to bear this duty in two respects. First, the State should adopt the necessary measures such as tariff schemes or subsidies to ensure that services are affordable; and second, implement practical framework and enabling environment to guarantee access to sanitation. [17]

Copious evidence suggest that privatisation stifles access to sanitation which in turn undermines the human rights and dignity of Ghanaians, especially those in poorer communities, who lack the financial backing to either build or pay for sanitation services. The right to sanitation is an enshrined human right obligation of governments in the international community, including Ghana, requiring that access is protected and promoted without citing arguments of economic, social or political expediencies. Although Ghana has finite resources like other states, it is obliged to allocate portion of its budgetary resources to ensure that access to sanitation and hygiene facilities are progressively realised in accordance with international and constitutional mandates. Similarly, the duty to protect access to sanitation extends to supervising the implementation of privatisation contracts without compromising the dignity and human rights of Ghanaians.

References

[1] <www.ohchr.org/EN/Issues/WaterAndSanitation/SR/Water/Pages/Progressiverealization.aspx. >Accessed December 13, 2021.

[2]Transforming our World: The 2030 Agenda for Sustainable Development (General Assembly Resolution 70/1, para. 5).

[3] UNICEF Ghana: “Water, Sanitation and Hygiene” < https://www.unicef.org/Ghana/Water-Saniation-and-Hygiene> Accessed December 14, 2021.  

[4] International Covenant on Economic, Social and Cultural Rights (ICESCR) (1966) UNTS, Art. 2 (1)

[5] Special Rapporteur on Human Rights to Safe Drinking Water and Sanitation, Caterina de Albuguerque, Report, Mission to Egypt, 50, UN. Doc.A/HRC/15/31/Add.3 (Jul. 5, 2010).

[6a] Vienna Convention on the Law of Treaties (1969),  Adopted May 23, 1969, entered into force on January 27, 1980, United Nations, Treaty Series, vol. 1155,p 331.

[6b] The World Bank-FAQ-World Bank Group Support for Water and Sanitation Solutions<https://www.worldbank.org/en/topic/water/brief/working-with-private-sectors-to-increase-water-sanitation-access > Accessed December 14, 2021.

[7] Gould, C. and Brown, C. Sanitation Challenge for Ghana Dignified City Award (Stage 2), May 2020, IMC Worldwide.

[8] The Charter of the United Nations and the Statute of the International Court of Justice, UN, New York (1997) 3.

[9] A/HRC/45/10, “Progressive Realization of the Human Rights to Water and Sanitation” Report of the Special Rapporteur on the Human Rights to Safe Drinking Water and Sanitation, September 14- October 2, 2020.

[10] A/HRC/45/10, Ibid. see note 9, para. 35

[11) Ibid. see note 9, para. 37

[12] Ibid. see note 9, para. 39

[13] A/HRC/30/39, Report of the Special Rapporteur  on the Human Right to Safe Drinking Water and Sanitation: Addendum, para. 25.

[14] The World Bank –FAQ – World Bank Group Support for Water and Sanitation Solutions < https://www.worldbank.org/en/topics/water/brief/working-with-private-sectors-to-increase-water-sanitation-access-> Accessed December 14, 2021.

[15] The World Bank, Ibid.

[16] Winkler, T.I., The Human Right to Sanitation (2016), University of Pennsylvania Journal of International, Vol.37 (4) 1331-1406.

[17] Eide, A., Economic, Social and Cultural Rights as Human Rights in Economic, Social and Cultural Rights- Textbook, 9, 24 (Asbjorn Eide, Catarina Krause and Allan Rosas eds, 2nd ed., 2001)

The role of judiciary in climate change litigation – the rise of a promising opportunity to combat climate change

Author Faculty of Business and Law | Posted on

By Christina Schroeder, LLM Student, Member of Environmental Law and Sustainability Research Group.

Climate change and how to combat it is an omnipresent issue. Whereas in the past climate change and its consequences were talked down, they are now seen as the “biggest threat modern humans have ever faced”[1] and referred to as a “crisis multiplier”[2] with the need to act in time, requiring global cooperation.[3]

The previous attempt to achieve climate protection at the political level by means of the Paris Agreement[4] can be considered a failure due to the lack of implementation[5] by the states.

This is where the consideration comes into play as to whether court rulings offer a possibility to effectively combat climate change. Climate change litigation is also increasing due to the influence of many young people who are campaigning for more climate protection with the help of the courts or by organising global climate strikes.[6]

There are several reasons why courts can provide an opportunity to effectively combat climate change through their judgments. In contrast to climate agreements as for example the Paris Agreement, courts take a clear line. Cases have to be decided and thus a clear result has to be reached; while political leaders so far have failed to implement measures to reach targets of the Paris Agreement.[7] Courts are also suited to their function of enforcing decisions promoting more climate protection. In the context of climate change litigation, judicial lawmaking is also becoming increasingly important. Courts decide whether existing laws need to be reinterpreted or amended when they are deemed unfair in their application to specific cases.[8]

Judicial successes in effectively combating climate change can be seen in several landmark rulings, especially in strategic cases[9] where courts make decisions by ordering the improvement or revision of current laws,[10] as in the cases of Friends of the Irish Environment v Ireland[11] and Neubauer et al. v Germany.[12]  For example, in the case of Friends of the Irish Environment v Ireland[13] the Supreme Court of Ireland quashed the National Mitigation Plan, as the court found that the plan was not detailed enough to effectively reach the goals within Ireland’s 2015 Climate Act.[14] The court also argued that especially for a normal citizen, the plan was not sufficiently specific enough relating to what actions would be taken until 2050 to give effect to the 2015 Climate Act of Ireland.[15] In this respect, the decision of the Supreme Court of Ireland has set the course for the fight against climate change but has so far contributed little to it due to a lack of political implementation of a new Mitigation Plan.

Recently in 2021, the German Federal Constitutional Court decided that the Federal Climate Change Act[16] does not sufficiently protect the future generations from the impacts of climate change.[17] The Court also found a duty of the German government to actively protect life and health of its citizens.[18] After the ruling in Germany, the German government initiated an amendment of the Climate Protection Act in a record time.[19] Under the amended Climate Protection Act by the German government from 24 June 2021, the climate protection targets have been tightened and now aim for Germany to become greenhouse gas neutral by 2045 which is five years earlier compared to the previous target in 2019 and also ahead of the EU’s target date.

Some court cases are also aiming to put pressure on the legislator to do more for climate protection. This can be seen in the cases of the Dutch Supreme Court deciding the case of Urgenda Foundation v. State of the Netherlands[20] in 2019 which identified a legal duty of the government to prevent and combat climate change more actively;[21] and the Colombian Supreme Court ruling in 2018 in favor of 25 children in Colombia who sued the Colombian Government for failing to prevent deforestation and therefore not taking actions against climate change.[22]

In Urgenda case, the Dutch Supreme Court invoked the government’s human rights obligations. In order for these to be fulfilled, the court orientated itself on a proposed common ground, which is the targeted reduction of greenhouse gases.[23] This ruling in particular is seen as very successful due to its transferability to other European countries and has already given rise to similar climate lawsuits.[24]

In the Demanda Generaciones Futuras case, the Colombian Supreme Court ordered the government to develop a plan for environmental protection of the Amazon, and at the same time declared the Amazon as an entity with own rights to be protected from destruction. Despite this important ruling, the government has not been able to adequately protect the Amazon.[25] This is not due to the ruling of the Colombian Supreme Court itself, which aimed for comprehensive protection, but solely to the lack of initiatives and measures adopted by the political leaders. Indeed, the approach of using the ‘Rights of Nature’ to protect nature is problematic in this respect, as nature is dependent on human representation. This can work well, as in New Zealand, where the Whanganui River[26] is represented by indigenous people. In contrast, the consideration of granting rights to the Great Barrier Reef remains a concern due to a lack of representation.[27]

The cases above show that courts can be an effective way to combat climate change.

In the context of behavioral effectiveness, the courts are moderately successful, as these decisions cannot directly influence people and their behavior, but they can indirectly influence people’s behavior by stimulating social debate and media attention.[28] In addition, courts can exert direct influence on legislators through their rulings.[29] This is also done while preserving the separation of powers, since despite judicial lawmaking, courts do not become politically active. Thus, the judiciary’s role to solve problems remains complicated. This is due to the fact that the separation of powers and the role of the courts require both political and social components in order to effectively implement a decision.[30] Courts cannot fight climate change on their own, but they can positively promote it.

[1] United Nations Security Council, Press Release SC/14445 ‘Climate Change ‘Biggest Threat Modern Humans Have Ever Faced’, World-Renowned Naturalist Tells Security Council, Calls for Greater Global Cooperation’ 23 February 2021 <https://www.un.org/press/en/2021/sc14445.doc.htm> accessed 14 June 2021.

[2] Ibid.

[3] Ibid.

[4] Paris Agreement, 22 April 2016, in force 4 November 2016, C.N.92.2016. Treaties-XXVII.7.d (2015 Paris Agreement).

[5] Sandrine Maljean-Dubois, ‘Climate Change Litigation’ Max Planck Encyclopedia of Procedural Law (2019) <https://halshs.archives-ouvertes.fr/halshs-02281274/document> No.4 accessed 24 August 2021.

[6] Ibid.

[7] Sandrine Maljean-Dubois, ‘Climate Change Litigation’ (n 5) No.4.

[8] Ibid.

[9] Orla Kelleher, ‘The Supreme Court of Ireland’s Decision in Friends of the Irish Environment v Government of Ireland (“Climate Case Ireland”)’ (EJIL, 9 September 2020) <https://www.ejiltalk.org/the-supreme-court-of-irelands-decision-in-friends-of-the-irish-environment-v-government-of-ireland-climate-case-ireland/> accessed 9 July 2021.

[10] Joana Setzer, Catherine Higham, ‘Global Trends in Climate Change Litigation: 2021 Snapshot’ (Policy Report July 2021) <https://www.lse.ac.uk/granthaminstitute/wp-content/uploads/2021/07/Global-trends-in-climate-change-litigation_2021-snapshot.pdf> 12, accessed 9 July 2021.

[11] Friends of the Irish Environment CLG v The Government of Ireland, Ireland and the Attorney General (2019) IEHC 747.

[12] Neubauer et al. v Germany, Court order of 24 March 2021, 1 BvR 2656/10.

[13] Friends of the Irish Environment CLG v The Government of Ireland, Ireland and the Attorney General (2019) IEHC 747.

[14] Climate Action and low Carbon Development Act 2015, 46/2015, into force on 10 December 2015.

[15] Mary Carolan, ‘Supreme Court Quashes Government’s Plan to Reduce Greenhouse Gases’ (The Irish Times, 31 July 2020) <https://www.irishtimes.com/news/crime-and-law/courts/supreme-court/supreme-court-quashes-government-s-plan-to-reduce-greenhouse-gases-1.4318578> accessed 10 July 2021.

[16] Climate Protection Act Germany (Klimaschutzgesetz), into force on 12 December 2019, amended on 24 June 2021.

[17] Ralf Bodle, Stephan Sina, ‘The German Federal Constitutional Court’s Decision on the Climate Change Act’ (Ecological Institute Berlin, 2021) <https://www.ecologic.eu/18104#:~:text=In%20a%20decision%20published%20in,by%20the%20end%20of%202022> accessed 10 July 2021.

[18] Ibid.

[19] Alice Boldis, Christian Lütkehaus, ‘How a Court Ruling Changed Germany’s Climate Protection Act’ (Pinsent Masons, 20 July 2021) <https://www.pinsentmasons.com/out-law/analysis/court-ruling-germany-climate-protection-act> accessed 2 August 2021.

[20] Urgenda Foundation v The State of the Netherlands (20 December 2019) 19/00135.

[21] Urgenda, ‘Landmark Decision by Dutch Supreme Court’ (Urgenda.nl, 2020) <https://www.urgenda.nl/en/themas/climate-case/> accessed 5 August 2021.

[22] Demanda Generaciones Futuras v Minambiente, Colombian Supreme Court (5 April 2018) STC 4360-2018.

[23] Laura Burgers, André Nollkaemper, ‘A New Classic in Climate Change Litigation: The Dutch Supreme Court Decision in the Urgenda Case’ (EJIL, 6 January 2020) < https://www.ejiltalk.org/a-new-classic-in-climate-change-litigation-the-dutch-supreme-court-decision-in-the-urgenda-case/> accessed 8 August 2021.

[24] Anke Wonneberger, Rens Vliegenthart ‘Agenda-Setting Effects of Climate Change Litigation: Interrelations Across Issue Levels, Media, and Politics in the Case of Urgenda Against the Dutch Government’ (n 45) 699.

[25] Alex Guillau, ‘The Colombian Government has Failed to Fulfil the Supreme Court’s Landmark Order to Protect the Amazon’ (Dejusticia, 5 April 2019) < https://www.dejusticia.org/en/the-colombian-government-has-failed-to-fulfill-the-supreme-courts-landmark-order-to-protect-the-amazon/> accessed 25 August 2021.

[26] New Zealand, Te Awa Tupua (Whanganui River Claims Settlement) Act 2017 / Rapid Transition Alliance, ‘The Rise of the Rights of Nature’ (Rapid Transition, 11 March 2019) <https://www.rapidtransition.org/stories/the-rise-of-the-rights-of-nature/> accessed 16 August 2021.

[27] Randall S. Abate, Climate Change and the Voiceless (Cambridge University Press 2019) 161.

[28] Anke Wonneberger, Rens Vliegenthart, ‘Agenda-Setting Effects of Climate Change Litigation: Interrelations Across Issue Levels, Media, and Politics in the Case of Urgenda Against the Dutch Government’ (2021) 15 Environmental Communication 699.

[29] Jaqueline Peel, Hari M. Osofsky, ‘Clime Change Litigation’ (2020) Annu. Rev. Law. Soc. Sci.33.

[30] Luke Elborough, ‘International Climate Change Litigation: Limitations and Possibilities for International Adjudication and Arbitration in Addressing the Challenge of Climate Change’ (2017) 21 NZ J Envtl L 125.

Climate Change Litigation – A Vehicle for Changing Corporation and State Behaviour?

Author Faculty of Business and Law | Posted on

By Johanna Reichel, Second Year, LL.B. Programme.

With only nine years left until climate change becomes irreversible,[1] stopping or slowing it down becomes increasingly crucial every day. One judicial instrument among others to combat climate change is climate change litigation which is gradually perceived to change climate-related policy outcomes and corporate behaviour.

The most prominent case when talking about climate change litigation is Urgenda.[2]In this case, the Dutch Supreme Court ruled in favour of 900 citizens assisted by the Urgenda Foundation and ordered the government to reduce greenhouse gas emission (GHG) by at least 25% by the end of 2020.[3] This “show horse” of climate change litigation is an almost perfect example of invoking human rights to force States to act ‘greener’.

Climate change litigation cases, especially ones relying on human rights, are increasing.[4] When the defendant is the respective government, the claimants can rely on human rights. Especially the right to life[5] and the right to effective remedies[6] have been used more often strategically and successfully by NGO’s and individuals.

Urgenda paved the way for other individuals, such as Ashgar Leghari, a farmer in Pakistan, to hold their governments accountable via litigation. Mr Leghari challenged the Pakistani government for its failure to carry out core provisions of the National Climate Change Policy of 2012. He succeeded and the government was ordered to implement a climate adaption plan.[7]

In 2018, Colombia’s Supreme Court ordered the authorities to implement action plans to address deforestation in the Amazon,[8] another major cause of climate change. As the ‘lung of the world’, the Amazon Forest stores large amounts of carbon that would otherwise be released into the atmosphere and thereby increasing the world’s temperature.[9]

As demonstrated, climate change litigation is a tool to influence climate change law and policy. Nevertheless, as corporations are responsible for over 71% of global emissions,[10] holding them accountable is essential to stop climate change. However, as the provisions in the Human Right Charters are only addressed to public bodies, corporations cannot be held liable under them.[11] After failed attempts in the early 2000s,[12] the second wave of litigation rose with cases such as Huaraz Case[13] where Saúl Luciano Lliuya, a Peruvian farmer, is suing the German multinational energy company RWE in Germany to hold them accountable for their impact on climate change. He is basing his claim on the German Code of Civil procedure, yet the outcome must be awaited as SARS COVID-19 delayed the process.[14]

The precedent for climate change litigation against corporations was recently set in Milieudefensie v Shell.[15] In May 2021, Shell was ordered to cut their GHG by 2030 by 45%.[16] Relying on the Urgenda precedent and the fact that Shell’s GHG was twice as high as the Netherland’s, the court permitted the claim under the European Convention on Human Rights.[17]

Despite the fact that courts do not always rule in favour of the environment, corporations can be influenced to act ‘greener’ due to media coverage. ExxonMobile, for example, misled the public about climate change’s potential business risks to rationalize their behaviour by funding climate change denial front groups and spreading disinformation about climate science.[18] Despite winning the case, the subsequent public and financial scrutiny damaged their reputation, and their credit rating was downgraded.[19] In conclusion, climate change litigation is accurately seen as a tool to influence climate change policies and corporate behaviour. However, cases such as Urgenda and Milieudefensie, while demonstrating an ideal outcome, are rare and must be built upon. Milieudefensie, in particular, needs to be further observed as Shell will undoubtedly appeal the decision. Nevertheless, even unsuccessful cases can drive climate change action long term as public awareness is raised through media attention and a broad public discussion is forced.

[1] General Assembly, Only 11 Years Left to Prevent Irreversible Damage from Climate Change, Speakers Warn during General Assembly High-Level Meeting (28 March 2019) < https://www.un.org/press/en/2019/ga12131.doc.htm> accessed 18 May 2021

[2] Supreme Court of the Netherlands, 20 December 2019, ECLI:NL:HR:2019:2007, English translation ECLI:NL:2019:2007

[3]’Climate Case – Urgenda’ (Urgenda, 2019) <https://www.urgenda.nl/en/themas/climate-case/> accessed 18 May 2021;  Supreme Court of the Netherlands, 20 December 2019, ECLI:NL:HR:2019:2007, English translation ECLI:NL:2019:2007

[4] Elisa de Wit, Sonali Seneviratne and Huw Calford, ‘Climate Change Litigation Update’ (Nortonrosefulbright.com, 2020) <https://nortonrosefulbright.com/en/knowledge/publications/7d58ae66/climate-change-litigation-update> accessed 24 May 2021

[5] Universal Declaration of Human Rights 1848, art. 3; International Covenant on Civil and Political Rights 1966, art. 6

[6] Universal Declaration of Human Rights 1848, art. 8; International Covenant on Civil and Political Rights 1966, art. 2(3)

[7] Asghar Leghari v Federation of Pakistan (2015) W.P. No 25501/201

[8] Demanda Generaciones Futuras v. Minambiente 11001-22-03-000-2018-00319-01, para 3.

[9] Ross W. Gorte and Pervaze A. Sheikh ‘Deforestation and Climate Change’ (Congressional Research Service, 2010) < http://forestindustries.eu/sites/default/files/userfiles/1file/R41144.pdf> accessed 2 July 2021

[10] Tess Riley, ‘Just 100 Companies Responsible For 71% Of Global Emissions, Study Says’ (the Guardian, 2017) <https://www.theguardian.com/sustainable-business/2017/jul/10/100-fossil-fuel-companies-investors-responsible-71-global-emissions-cdp-study-climate-change> accessed 18 May 2021

[11] European Commission, ‘How to report a breach of your rights’ https://ec.europa.eu/info/aid-development-cooperation-fundamental-rights/your-rights-eu/how-report-breach-your-rights_en accessed 26 May 2021

[12] Michal Nachmany and Joana Setzer, ‘Global trends in climate change legislation and litigation: 2018 snapshot’ (2018) Graham Research Institute on Climate Change and the Environment < https://www.lse.ac.uk/granthaminstitute/wp-content/uploads/2018/04/Global-trends-in-climate-change-legislation-and-litigation-2018-snapshot-3.pdf> accessed 24 May 2021

[13] Agence France-Presse, ‘Peruvian farmer sues German energy giant for contributing to climate change’ The Guardian (14 November 2017) < https://www.theguardian.com/world/2017/nov/14/peruvian-farmer-sues-german-energy-giant-rwe-climate-change> accessed 24 May 2021

[14] Luciano Lliuya v. RWE AG Case No. 2 O 285/15 Essen Regional Court

[15] The Hague District Court, 26 May 2021, ECLI:NL:RBDHA:2021:5337, English translation ECLI:NL:RBDHA:2021:5339

[16] Roger Harrabin ‘Shell: Netherlands court orders oil giant to cut emissions’ BBC News (26 May 2021) < https://www.bbc.co.uk/news/world-europe-57257982> accessed 26 May 2021

[17] Milieudefensie v Shell [2019] District Court of The Hague < http://blogs2.law.columbia.edu/climate-change-litigation/wp-content/uploads/sites/16/non-us-case-documents/2019/20190405_8918_summons.pdf> accessed 26 May 2021

[18] Suzanne Goldenberg ‘ExxonMobil under investigation over claims it lied about climate change risks’ The Guardian (New York, 5.11.2015) <https://www.theguardian.com/environment/2015/nov/05/exxonmobil-investigation-climate-change-peabody> accessed 8 July 2021

[19] Megan Darby, ‘Shareholder Pressure Mounts On Downgraded Exxonmobil’ (the Guardian, 2016) <https://www.theguardian.com/environment/2016/apr/28/shareholders-pressure-mounts-on-downgraded-exxonmobil-climate-change> accessed 25 May 2021

Urgenda: A Turning Point in Climate Litigation- An Analysis of the Supreme Court Decision

Author Faculty of Business and Law | Posted on

By Farzam Maleki, second year LLB student

The main question of law raised by the Urgenda case[1] is whether the Dutch government was acting unlawfully, in not meeting the internationally recognised climate target to reduce greenhouse gas emissions by 25% in 2020 compared to 1990.[2]

In this case, several matters were brought before the court to consider in order to reach the decision. First, the court was asked to decide whether the state had a legal duty to prevent dangerous climate change under European Convention on Human Rights[3] (hereinafter: ECHR) and whether the Urgenda as an NGO could bring a claim on behalf of Dutch residents before the court or according to article 34 ECHR claims could only be brought by the individuals who are direct victims of the violation of the rights mentioned in ECHR.[4]

Furthermore, the court had been asked to decide whether, despite the fact that the Netherlands’ share in global greenhouse gas emissions is insignificant, the Dutch government is still required to reduce their greenhouse gas emission as an individual country to comply with the ‘international consensus’.[5]

Another important question raised by the state is whether it is permissible for the court to issue an order on this matter and oblige the state to reduce greenhouse gas emissions or as the state claimed ‘it is not for the courts to make the political considerations necessary for a decision on the reduction of greenhouse gas emissions’.[6]

On 20 December 2019, the Supreme Court of the Netherlands upheld both the District Court and the Court of Appeal’s decisions that the state is obliged to reduce greenhouse gas emissions by 25% in 2020 compared to 1990.[7]

The Supreme Court of the Netherlands in their decision consolidated the Court of Appeal’s Human Rights approach to climate change and concluded that although according to Article 34 the Urgenda cannot bring a claim to ECtHR, in accordance with Article 3:305a of the Dutch Civil Code, Urgenda could bring a claim before the Dutch court on behalf of an interest group who in this case are the residents of the Netherlands.[8]

The court rejected the state’s argument that the Netherlands’ share in global emission is not significant by stating that:

This duty is not diminished by the fact that the Dutch contribution to the present global greenhouse gas emissions is currently quite minor. Given that at least the 450 ppm scenario is required to prevent hazardous climate change, the Netherlands should take measures to ensure that this scenario can be achieved.[9]

The Supreme Court also rejected the state’s argument that the greenhouse reduction targets set out in the IPCC Fourth Assessment Report (AR4)[10] were meant to be achieved by Annex I countries[11] as a group, not by each country individually. The court within its reasoning states:

However, as shown by the considerations in 5.7.3 and 5.7.4 above, the UNFCCC[12] and the Paris Agreement[13] are both based on the individual responsibility of states. Therefore, in principle, the target from AR4 also applies to the individual states within the group of Annex I countries.[14]

Regarding the permissibility of issuing an order by the court on this matter, the Supreme Court concluded that the court’s decision is an order to reduce emissions rather than interfering with the legislative process and the judiciary must judge whether the state is following the law in making their political decisions.[15] Therefore, this case is considered a benchmark for the influence of domestic courts in enforcing governments to comply with internationally recognised environmental goals.

[1] State of Netherlands (Ministry of Economic Affairs and Climate Policy) v. Stichthing Urgenda, Supreme Court of the Netherlands, 20 December 2019, ecli:NL:HR:2019:2006, English translation ecli:NL:HR:2019:2007. (hereinafter: Urgenda).

[2] UNFCCC Decision 1/CP.16, para. 8, fccc/CP/2010/7/Add.1 (2007).

[3] Convention for the Protection of Human Rights and Fundamental Freedoms (adopted 4th November 1950, entered into force 3rd September 1953) ETS No.005.

[4] Urgenda (n1), para 5.9.1-5.9.3.

[5] ibid, para 4.3 and 7.1-7.3.6.

[6] ibid, para 3.5.

[7] ibid, para 9.

[8] ibid, para 5.9.1-5.9.3.

[9] ibid, para 2.3.1.

[10] S. Solomon, D. Qin, M. Manning, Z. Chen, M. Marquis, K. B. Averyt, M. Tignor & H. L. Miller (eds.), Climate Change 2007: The Physical Science Basis. Contribution of Working Group I to the Fourth Assessment Report of the Intergovernmental Panel on Climate Change (Cambridge University Press 2007).

[11] ‘Annex I Parties include the industrialized countries that were members of the OECD (Organisation for Economic Co-operation and Development) in 1992, plus countries with economies in transition (the EIT Parties), including the Russian Federation, the Baltic States, and several Central and Eastern European States.’

[12] UNFCCC Decision 1/CP.16, para. 8, fccc/CP/2010/7/Add.1 (2007).

[13] Paris Agreement UN Doc. fccc/CP/2015/L.9/Rev.1 (2015).

[14] Urgenda (n1), para 7.3.2.

[15] ibid, para 8.1- 8.3.4.

Environmental crises in Nigeria and extraterritorial judicial achievements: A wake-up call for Nigerian courts?

Author Faculty of Business and Law | Posted on

Written by Cleverline T Brown, Doctoral student, member of Environmental Law and Sustainability Research Group.

The decisions of extraterritorial courts have left much to be desired about the efforts of the judiciary at the national level to assert itself in the fight to tackle environmental crises. While access to court has been one of the notable barriers to securing environmental justice in Nigeria, alternative pathways have been established through which litigants find access to courts in furtherance of environmental justice which they would otherwise have been deprived of. One such pathway is the recourse to foreign courts. Nigerian courts can draw some lessons from the stance of foreign courts in dealing with environmental cases.

Notable cases decided in foreign jurisdictions

Three notable cases were decided in the last year that may have possibly marked a turning point in the way environmental cases are resolved. However, the Nigerian courts do not seem to be taking the cue as quickly as they need to, considering the volume of environmental cases pending or likely to be instituted.

Vedanta Resources Plc. and Another (Appellants) v Lungowe and Others (Respondents)

In this case,[1] the UK Supreme Court held that UK courts can assume jurisdiction in certain circumstances, over cases instituted in UK Courts by non-UK citizens against both foreign subsidiaries and the UK parent company in cases of human rights violation outside of the UK.[2] The Appellants vehemently opposed unsuccessfully, the institution of the case in the UK Court on grounds of jurisdiction and their willingness to submit to the jurisdiction of the Zambian Court. The opposition was rejected by the Supreme Court. The court reasoned that a parent company should take responsibility for harms caused by its subsidiaries and affirmed that England is the right jurisdiction to hear the claim because substantial justice is guaranteed where the claimants have access to appropriate legal representation which is unlikely in a Zambian Court.[3]

Okpabi and Others (Appellants) v Royal Dutch Shell Plc and Another (Respondents),

The UK Supreme Court, in this case,[4]held that the polluted Ogale and Bille communities can sue Royal Dutch Shell as a parent company to Shell Petroleum Development Company (SPDC) because it owed the communities a common law duty of care and raised a real and triable issue since it exercised significant control over material aspects of the operations of its subsidiary SPDC in the communities.[5] It is contended that this decision implies that rural communities who have suffered environmental harm due to the activities of multinational corporations can bring an action in the original jurisdiction of their parent companies.

Milieudefensie Voor Veranderaars (Friends of the Earth Netherlands) & Others v Royal Dutch Shell PLC[6]

In this case, Milieudefensie, six other organisations including Greenpeace and over 17,000 co-plaintiffs sued Royal Dutch Shell in an attempt to stop it from causing climate change.[7] The plaintiffs claimed that Shell is breaching its legal duty of care by causing climate change across the globe and undermining the ambition of the Paris Agreement[8] and demanded that Shell must remedy this unlawful situation by aligning its corporate activities and investment decisions with the global climate targets. This case is significant in the sense that it has attempted to force climate action through the court. The reliefs sought by the plaintiffs are first, that as a multinational and worldwide operating company, Shell accepts legal responsibility to amend its corporate strategy and investment decisions and to align them with the global climate change objectives laid down in the Paris Agreement by following the global emission reduction pathway of the IPCC. Second, that Shell immediately starts reducing its CO2 emissions to at least 45% by 2030 relative to 2019 levels, and to net zero in 2050. Only if Shell follows this emission reduction pathway, can it truly contribute to preventing catastrophic climate change. The court ruled in favour of the plaintiffs.

Resorting to extraterritorial jurisdiction: some concerns

While the option to seek access to courts in extraterritorial jurisdictions in environmental cases, guarantees access to appropriate legal representation and substantial justice,[9] it raises some concerns. First, prospective litigants must ensure that all other local remedies have been exhausted before they can approach some foreign courts.[10] While this would have been an opportunity for the national courts to play a stronger role, some of the challenges of the national courts would make this effort almost fruitless; for example, court delays, lack of specialised judges etc.[11]  Second, high cost of litigation in foreign courts and jurisdictional challenges as some courts may not have the power to hear and determine some cases.[12] Third, it is argued that the continuous reliance on this pathway robs the national courts of the opportunity to assert themselves and create lasting judicial precedence and case law.

Is this a wake-up call for the Nigerian courts?

Nigerian courts must take a cue from the stand of foreign courts in environmental cases and give better audience and remedies to victims of environmental harm in Nigeria,[13] especially from foreign court decisions with impact in Nigeria. This will serve to strengthen environmental laws in Nigeria and encourage institutional structures in their implementation functions. The stand of the Nigerian courts can serve to strengthen the law, policy statements and ultimately support the efforts at effective regulation of the environment and petroleum sector operation.

There are some positive signals from the Nigerian judiciary. In the case of Centre for Oil Pollution Watch v Nigerian National Petroleum Corporation (NNPC),[14] the Nigerian Supreme Court removed the locus standi barrier by granting NGOs the right to sue without exhibiting specific injury to them. Prior to this decision, NGOs and third parties lacked the locus standi to sue where sufficient interest was not established.[15]

While this is a step in the right direction, more needs to be done at the national level and examples are plentiful. For instance, the European Commission is finally ready to consider a new law to hold businesses accountable for their impact on people and the planet.[16] These rules on ‘mandatory human rights and environmental due diligence’ would require all companies, from fossil fuel giants and agribusiness to fashion retailers and electronics makers, to establish effective policies to make sure human rights and the environment are not being harmed in their global operations and supply chains.[17] In the Netherlands, Urgenda[18] sued the Dutch government to force them to reduce CO2 emissions in the country.[19] Urgenda succeeded on appeal when the Supreme Court of the Netherlands emphasised the duty of the state to protect its citizens by reducing CO2 emissions as soon as possible.[20] In Germany, it has also been held by the First Senate of the Federal Constitutional Court of Germany that the provision of the Federal Climate Change Act of 2019 is at variance with fundamental rights because they lack specificity for emission reduction beyond 2031.[21] In addition to the Supreme Court decision on locus standi of NGOs and third parties, the Nigerian judiciary could act suo moto and be proactive in contesting legislative provisions or policies of government that are incompatible with fundamental rights. Considering the volume of actions arising from the petroleum sector, the judiciary needs to play a far more important role in ensuring environmental justice.

Conclusion

Local communities are more vulnerable to the negative impacts of environmental decisions of multinational corporations.[22]  Oftentimes, it takes a long time for victims of environmental harm to get relief because of the many obstacles of access to courts and remedies. However, the audience and remedies that prove elusive in Nigerian courts are found in foreign courts. Considering the achievement by foreign courts and the effort of other national courts at holding perpetrators of environmental harm accountable as discussed above, Nigerian courts could use this opportunity to reassert themselves in environmental law cases before it. This is a wake-up call for Nigerian courts to rise to the occasion and improve on their judicial precedents regarding environmental law decisions. Since judicial decisions and statutory interpretations form part of the law, this can further strengthen the environmental legal framework of Nigeria and also solve the problem of access to courts and remedies.

[1] Vedanta Resources Plc and Anor (Appellants) v Lungowe and Others (Respondents) [2019] UKSC 20.

[2] The UK Supreme Court rationale for this decision was that considering some factors such as competence, capacity and integrity of Zambia’s justice system, evidence abounds that the Zambian claimants would almost certainly not get access to justice if the claims were pursued in Zambia.

[3] TV Ho, ‘Vedanta Resources Plc and Another v Lungowe and Others’ (2020) 114(1) The American Journal of International Law 110, 113; PT Sambo, ‘Vedanta Resources PLC and Konkola Copper Mines PLC v Lungowe and Others [2019] UKSC 20′ (2019) 2(2) SAIPAR Case Review 5.

[4] Okpabi and Ors v Royal Dutch Shell Plc and Anor [2021] UKSC 31. On appeal from [2018] EWCA Civ 191.

[5] E Ojeda, ‘Transnational Corporate Liability Litigation and Access to Environmental Justice: The Vedanta v Lungowe Case’ (2021) 6(3) LSE Law Review 223, 224.

[6] Milieudefensie Voor Veranderaars (Friends of the Earth Netherlands) & Ors v royal Dutch Shell PLC ECLI:NL:RBDHA:2021:5339.

[7] ‘Milieudefensie et al v Royal Dutch Shell PLC’ (2021) <https://climate-laws.org/geographies/netherlands/litigation_cases/milieudefensie-et-al-v-royal-dutch-shell-plc> accessed 9 June 2021.

[8] Milieudefensie, Friends of the Earth Netherlands. ‘Notice Letter Shell’ (2021) <https://en.milieudefensie.nl/news/noticeletter-shell.pdf> accessed 26 May 2021.

[9] See Vedanta Resources Plc and Anor v Lungowe and Others [2019} UKSC 20; Okpabi and Ors v Royal Dutch Shell Plc and Anor [2021] UKSC 31. On appeal from [2018] EWCA Civ 191; Milieudefensie Voor Veranderaars (Friends of the Earth Netherlands) & Ors v royal Dutch Shell PLC ECLI:NL:RBDHA:2021:5339.

[10] Article 50 of the African Charter on Human and Peoples’ Rights.

[11] These challenges usually negatively impact the justice delivery in such cases.

[12] Ojeda (n 5) 224; S Varvastian and F Kalunga, ‘Transnational Corporate Liability for Environmental Damage and Climate Change: Reassessing Access to Justice after Vedanta v Lungowe‘ (2020) 9(2) Transnational Environmental Law 323, 330; EO Popoola, ‘Moving the Battlefields: Foreign Jurisdictions and Environmental Justice in Nigeria’ <https://items.ssrc.org/…environments/moving-the-battlefields-foreign-jurisd…> accessed 19 August 2019; Socio-Economic Rights and Accountability Project (SERAP) v. Nigeria, ECW/CCJ/APP/08/09; RULING No: ECW/CCJ/APP/07/10.

[13] As exhibited in the three landmark judgments outlined in this writing.

[14]  (2019) 5 NWLR (Pt.1666) 518.

[15] See Oronto Douglas v Shell Petroleum Development Company Limited & Ors (1998) LPELR-CA/L/143/97 Law Pavilion Electronic Law Report- Court of Appeal.

[16] S Kotanidis, ‘Parliament’s Right of Legislative Initiative’ (2020) <https://www.europarl.europa.eu/RegData/etudes/BRIE/2020/646174/EPRS_BRI(2020)646174_EN.pdf> accessed 8 June 2021.

[17] Austrian Chamber of Labour (AK), ‘What is Human Rights and Environmental Due Diligence?’ (2021) <https://www.enforcinghumanrights-duediligence.eu/en/what-is-due-diligence> accessed 27 May 2021.

[18] An organisation for innovation and sustainability that promotes the sustainability of Netherlands in conjunction with companies, governments, social organisations and private individuals.

[19] Urgenda Foundation v State of the Netherlands [2015] HAZA C/09/00456689.

[20] KJ De Graaf and JH Jans, ‘The Urgenda Decision: Netherlands Liable for Role in Causing Dangerous Global Climate Change’ (2015) 27(3) Journal of Environmental Law 517, 527.

[21] Bundesverfassungsgericht, ‘Constitutional Complaints Against the Federal Climate Change Act Partially Successful’ (2021) <https://www.bundesverfassungsgericht.de/SharedDocs/Pressemitteilungen/EN/2021/bvg21-031.html;jsessionid=BDDC5CCCCC30DD7A5791EAC6A0ECA022.1_cid377> accessed 8 June 2021.

[22] S Varvastian and F Kalunga, ‘Transnational Corporate Liability for Environmental Damage and Climate Change: Reassessing Access to Justice after Vedanta v Lungowe‘ (2020) 9 (2) Transnational Environmental Law 323, 324.

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