135097 PROSECUTORS REACTION PAPER 4

Article: Human Rights and Climate Change (2018) by Annalisa Savaresi

In her paper, Savaresi discusses the growing utilization of human rights-based arguments
within climate change litigation. These arguments are emerging as tools to prompt both state
and non-state entities to address climate change and its consequences. The author aptly
illustrates this through two distinct avenues: (a) Demonstrating the use of human rights
arguments to advocate for heightened pre-emptive measures against potentially catastrophic
climate change; and (b) Showing how human rights arguments are invoked in seeking remedies
for harm inflicted upon individuals, property or the environment due to climate change.
Although the author cites instances from Colombia and the Netherlands, it is essential to
acknowledge that even within Kenya, human rights considerations have been integrated into
climate change litigation.
This is exemplified in the case of Save Lamu and 5 others versus National Environmental
Management Authority and another before the National Environment Tribunal (NET).1 Save
Lamu along with several community organizations, the Petitioners, contested the issuance of
an Environmental Impact License, asserting, among other issues, that the public was
inadequately involved in the Environmental Impact Assessment (EIA) process. The Petitioners
effectively argued that their environmental rights, as well as the right to information, were
being infringed upon. The Tribunal emphasized that granting affected individuals access to
information is pivotal for their meaningful engagement and informed decision-making; that
this approach aims to address community concerns and involve various stakeholders. As a
result, the Tribunal ruled for a fresh EIA study. This decision validates the author’s assertion
that human rights arguments have been made in climate change litigation to pre-empt
catastrophic climate change. Notably, the license in this case been granted to a private actor,
Amu Power.2 Consequently, the tribunal’s ruling served as a mechanism of accountability or
corporate responsibility in relation to climate change and infringements of human rights – a
phenomenon alluded to by the author.
Despite the increase in climate change litigation, the author does not highlight the different
barriers to such litigation that may exist in different jurisdictions. For example, litigation can
be expensive and time consuming in some instances. Despite this barrier, some vulnerable
communities are still able to bring their claims to court through support from civil society
groups. These claims, however, end up in settlement agreements where the corporations
involved enter into agreements with the victims. Within these agreements, victims are offered
compensation, contingent on their relinquishment of any rights to file future legal claims. This
practice of accepting legal waivers by right-holders is driven by the desire for quick resolution
of grievances, typically in the form of short-term monetary compensation. These legal waivers
in settlement agreements only provide temporary relief for right-holders but do not address
the bigger issue of climate change.

1
(2019) eKLR.
2
https://www.amupower.co.ke/about.html#:~:text=About%20Amu%20Power&text=The%20coal%20power%2
0plant%20is,in%20East%20and%20Central%20Africa on 13th August 2023.