CYIL vol. 15 (2024)

MONIKA FEIGERLOVÁ CYIL 15 ȍ2024Ȏ legislative efforts, reflected in the Climate Change Act of 2021, were assessed against the state’s duty to protect human rights and critiqued by Professor Jegede for lacking an adequate procedural framework, which could hinder effective climate change litigation against the government or private companies in Nigeria. In the following chapter, legal practitioner Loser draws on her experience of coal litigation in South Africa, where the Constitution guarantees a ‘right to an environment not harmful to health and well-being’. She analyses cases to stop new coal development and to review the government’s coal-based electricity policy and assesses how different types of coal litigation contribute to GHG mitigation. The procedural barriers to access to justice faced by environmental organisations in Cameroon are echoed by Owona Mbarga, who also underlines the importance of forestry and wildlife litigation in the Cameroonian context, cases that are not yet framed by climate narratives, but which may have an impact on carbon sequestration and could potentially develop into climate litigation in Cameroon. Part II approaches the interplay between human rights and climate change within African legal systems. It starts with an analysis of African regional human rights bodies, where Boshoff explores the normative framework established by African human rights instruments and the existing case law, and assesses the potential success of future climate litigation, highlighting the substantive rights protection and flexibility of procedural requirements. Considering that African states are generally not primary contributors to climate change, she advocates for a focus on adaptation remedies or legislative reforms to protect people against the actions of non-state actors, rather than on the GHG reductions that dominate climate litigation in the Global North. Judge Mativo examines climate change displacement litigation in Africa, where the risk of climate displacement is high, and evaluates how the African regional system and human rights frameworks could support the recognition of refugee status for climate displaced persons. From a different perspective, Batt highlights the importance of indigenous traditional knowledge in Africa, particularly regarding ecosystems and weather prediction, as a valuable source for climate change mitigation, adaptation, and policy development. Batt references key cases from African regional bodies that have protected the cultural rights of indigenous people and could have the potential to protect meteorological traditional knowledge against biopiracy and misappropriation. The power of constitutional environmental rights in various African states is tested through rights-based private litigation against private emitters. Drawing on an expansive horizontal interpretation of human rights under the South African Constitution, Rebelo and Rebelo explore the potential transplantation of the Dutch Shell judgment 8 into the South African context to hold private actors accountable for their contributions to climate change, which they argue could prove even more direct and less cumbersome. This part of the book concludes with a chapter by van Wyk that offers a comparative analysis of approaches to climate change litigation, contrasting the Dutch fair share approach, exemplified by the Urgenda decision, with the South African approach, which, in the absence of systemic mitigation cases, remains less explicit in defining the acceptable GHG reductions. This distinction points to differing international legal obligations that the Netherlands and South Africa have in relation to climate action.

8 Milieudefensie et al. v. Royal Dutch Shell plc ., Judgment ECLI:NL:RBDHA:2021:5339 of the Hague District Court, dated 26 May 2021.

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