Climate change has immediate and far-reaching impacts on the effective protection of human rights. These rights are especially negatively affected in Africa due to the continents high ecological vulnerability and low adaptive capacity. In the context of climate change human rights can be violated 1) through insufficient mitigation policies leading to sever impacts of climate change, 2) governments inability to effectively implement policies and strategies to assist societies and individuals, especially the most vulnerable, in adapting to the changing climate, or 3) by neglecting human rights safeguards in the planning and implementing mitigation measures.
The climate change regime obligates developing countries to formulate and implement adaptation and mitigation measures to prevent and minimise the effects of climate change.
Furthermore, it requires the parties to include climate change considerations into their social, economic and environmental policies and actions, and to invite the public to participate in carrying out these commitments. However, the extent of the adaptation and mitigation measures is self-determined and subject to additional support by developed countries. The climate change regime recognises that climate change threatens the effective implementation of human rights. However, the regime’s current commitments are not ambitious enough to mitigate GHG emissions in a level that would guarantee that rights violations would not occur due to changing climate. In addition, the parties to the UNFCCC have not been able to agree on a loss and damage mechanism that would compensate developing countries on their losses. Such compensation mechanism would be needed in particular in situations where the losses result in human rights violations.
The current climate change regime only obligates developing parties to guarantee rights for public participation, which is an important first step in enhancing transparency and highlighting potential human rights violations. However, these rights are not required to be applied in an extensive form. Furthermore, it recognises the human rights obligations of each party, when implementing adaptation and mitigation measures. However, it does not pose any self-standing human rights obligations. This means that developing countries should consider
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their constitutive and international human rights obligations in their climate action, especially since the burden to guarantee the human rights is left to developing countries themselves.
The human rights regime generates substantive obligations to respect, protect, fulfil and promote human rights in countries that have ratified the relevant international human rights instruments. The majority of African countries are parties to the key human rights instruments, which are the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights and the African Charter on Humans and Peoples Rights, as well as the UNFCCC. International law requires interpretation of human rights law and climate change law in a compatible manner, as they derive from the same objective to produce better conditions for life. Therefore, African countries are obligated to adopt legislative, administrative, financial, educational and social measures that will guarantee people’s rights in the era of a changing climate. Thus, human rights considerations should be included in climate policy. At a minimum, countries are required to guarantee the right to life as well as the minimum core obligations arising from the underlying determinants of the right to life, such as access to food, housing, safe drinking water and sanitation that are safe and culturally adequate. Even in the case of natural disasters, such as droughts caused by changing climate, the parties must guarantee minimum core rights to people. States are required to use all available resources, as well as international assistance and cooperation to fulfil these core rights. Therefore, adaptation policies, which are critical in addressing impacts of climate change, should be based on a consideration of human rights, or at least on the minimum core rights. Furthermore, human rights safeguards should be built in the planning and implementation processes of mitigation actions and actions enhancing carbon sinks, to ensure that governments or private actors do not violate human rights.
The African Union has developed a comprehensive draft climate change strategy, which aims to improve the resilience of Africa, when implemented. However, the strategy fails in including human rights consideration as part of the strategy and action. The Republic of South Africa has been considered as a case study, as it is a leading country on the continent in climate change policy development and action. South Africa has developed a comprehensive climate change response policy that is based on the right to environment, guaranteed in Section 24 of the Constitution of the Republic of South Africa. Furthermore, the climate change response policy is cognizant of the Bill of Rights. The planned mitigation and
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adaptation measures aim to improve resilience of South Africa to climate change and are likely to mitigate human rights violations due to climate change. However, human rights considerations have not been used as a basis of determining the level of climate ambition, and neither has the human rights safeguards been built in the draft mitigation legislation.
The African Charter through its right to a generally satisfactory environment guarantees a collective right to environment with a certain quality. This specific right, as demonstrated by case law, poses procedural rights on the African states to assess the environmental and socioeconomic impacts, including the impact of climate change on human rights. If the environmental quality is affected disproportionately due to climate change, the states are obligated to compensate their people.
This research finds that the climate policies in Africa should be based on the right to generally satisfactory environment, and should consider the minimum core obligations as a basis of adaptation measures and include human rights impact assessments as a part of mitigation measures.
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