Science and law needed to halt climate change
Politicians should get ready to apply due diligence, precautionary measures
DANISH physicist and Nobel Prize winner Niels Bohr once said “prediction is difficult, especially about the future”. While this may be true, it has become less and less viable in the context of climate change. Climate change continues to pose significant risks to humans and the environment across the globe. In recent decades, substantially more impacts have been attributed to climate change. These impacts are particularly severe in Africa where economic growth, sustainable development and human security are under threat. Also, the health, livelihoods and food security of people in Africa are all affected by climate change.
In 2014, the Intergovernmental Panel on Climate Change (IPCC) released its 5th Assessment Report on Climate Change (AR5), which presents strong evidence that the impacts of climate change in Africa are already being felt across various sectors. Although the report provides thorough evidence that climate change is a pressing and present reality, the IPCC has so far avoided making normative statements encapsulating its general findings.
Yet, normative claims are inevitable to give societal meaning to the scientific and empirical findings generated by the IPCC reports. Therefore, science and law need to be brought together to make a significant and timely difference to humanity in the face of climate change, especially to those most severely affected.
Changes in climate are most often analysed in terms of their impacts and adaptation and mitigation strategies. Relatively under discussed are the general questions of how climate change may affect current law-giving and its implementation.
For instance, human-induced (that is humanmade) climate change raises the question whether and to what extent previously termed “Acts of God” may be used as an actual or implied defence in a legal process.
If an “Act of God” is defined as an unforeseeable natural phenomenon due to natural causes and which could not have been prevented via human planning and foresight, then it would seem that climate change falls foul of all these conditions.
The facts are: climate change is increasingly foreseeable, it is only partly a natural phenomenon and it can be prevented, at least partially, by appropriate action or actions via mitigation.
Where climatic changes become increasingly foreseeable, the courts will need to determine the delimitations of the “Act of God” defence justification. And in order to avoid negligence, politicians should start getting ready to apply due diligence and reasonable precautionary measures in good time.
Climate change permeates the law in many ways, creating intersections of law in its diverse fields. Climate change law, an emerging legal discipline, is both international and domestic in nature and includes, at least, two complementary dimensions: a procedural and substantive one. The procedural dimension refers to the right to climate information, the right to participate in climate-related decision-making, and the right of access to climate justice. Climate change opens a multitude of procedural challenges with the requirement of legal standing leading the way.
Climate change law consists of the sum of legal provisions protecting the climate itself and those who need protection from the negative effects of climate change. The substantive dimension of climate change law is far-reaching and can embody, among others, constitutional law; administrative law; environmental law; maritime law; water law and the law of the sea; coastal law; biodiversity law; agricultural law; building and planning law; human rights law; humanitarian law; criminal law; the law of nuisance; the law of tort; liability law (including the “Act of God” doctrine mentioned above); insurance law; trade and investment law and even tax law.
In a horizontal sense, climate change law intersects at different levels of international and national law. The horizontal level would entail international law with multilateral agreements on the global, regional and sub-regional level, bilateral and unilateral agreements, general principles of law, customary international law, case law, and other instruments such as the UN Framework Convention on Climate Change (UNFCCC).
National laws that may be affected or contribute to tackle existing climate challenges consist of constitutional law, such as fundamental human rights which include the right to food, health or environment enshrined in a national constitution; statutory law, such as legislation on energy and policies where many countries have developed specific climate change policies, strategies and action plans; common law, including public and private nuisance and tort claims; case law and other relevant instruments.
Climate law (national, regional and international) should also form part of a social protection system for food security and resilience building and climate change. The demarcation between “hard” and “soft” law can create complications, however. Some of the sources of national and international law are obligatory; others are of a non-binding nature. In the climate change context, the lack of globally applicable enforceable legal obligations is without doubt one of the major deficiencies.
The intersections of international climate change law and multiple overlapping regulatory bodies reflect the fragmentation of global climate change governance in the absence of a universal climate change regime. This makes international climate change law extremely complex and global climate governance un-orchestrated. In the face of the above and despite the fact that climate change action goes beyond the capacity of national governments, it seems most likely that challenges at the national level will be the preferred to deal with climate change inaction.
Climate change law has the potential to shake the foundations of previously held ideas of the grounds for litigation by groups, regions or governments given environmental damage caused by climate change. It intersects with and will colour the development of many aspects of current international law and will have to deal with completely new categories of legal issues, such as the status of “climate refugees”, who will move as their adaptive response to climate change.
In December 2015, the Paris Agreement was adopted at the 21st Conference of the Parties (COP21) to the UNFCCC. As an agreement under international law, its central objective is the determination of binding quality goals for the protection of the climate for nearly the entire international community. For the first time in human history, the international community has agreed under international law to a quantified climate protection goal. If this goal is to be reached, it will be through Nationally Determined Contributions (NDCs). South Africa and most, if not all African countries, submitted their NDCs prior to COP21 in Paris. Although the failure to reach the announced NDCs is not sanctionable according to the Paris Agreement, countries are expected make national provisions to guarantee enforcement of their commitments.