Episode 18 - Will the Courts Save Us from Climate Change?
Show notes
Transcript
Show notes
In this episode, I have the pleasure of speaking to Dr. Ashfaq Khalfan, who is the Director of Climate Justice at Oxfam USA. In this first part of our conversation, we speak about his interest in human rights, specifically socioeconomic human rights, and his career so far, including a current focus on climate change strategic litigation. In the second part of our conversation, we will talk more about what’s happening in the world of strategic climate litigation, all the way up at the level of the International Court of Justice, what his team is working on for this, and what he thinks Areas might be to look out for in the future on this topic.
Transcript
Dr Ashfaq Khalfan – Will the Courts Save Us from Climate Change?
[00:00:00] Intro
[00:00:00] Dr. Miranda Melcher – Just Access e.V.: Hello, and welcome to Just Access. In this podcast series, we talk to some fascinating people, including legal experts, academics, and human rights advocates from all walks of life. Through these conversations, we explore ideas about the future of human rights and improving access to justice for all. Our goal is to educate the wider public and raise awareness about human rights.
[00:00:28] After all, our motto is, everyone can be a human rights defender. My name is Dr. Miranda Melcher, and I’m a Senior Legal Fellow at Just Access, and the host of this podcast. In this episode, I have the pleasure of speaking to Dr. Ashfaq Khalfan, who is the Director of Climate Justice at Oxfam USA. In this first part of our conversation, we speak about his interest in human rights, specifically socioeconomic human rights, and his career so far, including a current focus on climate change [00:01:00] strategic litigation.
[00:01:01] In the second part of our conversation, we talk more about what’s happening in the world of strategic climate litigation, all the way up at the level of the International Court of Justice, what his team is working on for this, and what he thinks Areas might be to look out for in the future on this topic.
[00:01:18] Let’s get into the conversation.
[00:01:30] Interview – Part 1
[00:01:30] Dr. Miranda Melcher – Just Access e.V.: Currently the Director of Climate Justice at Oxfam USA. But you’re also a lawyer, a scholar, a human rights activist, a sector insider, and in our opinion, one of the visionary thinkers of the human rights movement globally. Where did all of this begin? When did you first become interested in human rights?
[00:01:50]
[00:01:50] Dr. Ashfaq Khalfan – Oxfam USA: Yeah, thanks. Thanks for inviting me. I’m not a visionary. I’m just a normal person. Yeah, this started for me in secondary school. I was, I grew up in Nairobi, Kenya, and it [00:02:00] was a really exciting time. There was the struggle for, it was at that point a one party state and there was the struggle for multi party democracy taking off.
[00:02:09] And at its forefront, the people who led that were human rights lawyers. Really inspiring the courage and what they were able to achieve, you know, it made it, they brought a sense of you know, just that these are not just ordinary politicians jostling for power. So that was great.
[00:02:24] I then at one stage I did an internship with the Legal Aid Center toward Sharia in Nairobi, and it focused on work in the informal settlements in Nairobi and it just exposed me so clearly how poverty in the city was a matter of choice. It was a deliberate decision by the government to ignore and exploit virtually half the city.
[00:02:49] Now, I mean, growing up in Nairobi, everyone’s aware of poverty, but that just brought it out for me, how it was government policy rather than a case of lack of development, or [00:03:00] just a matter of time until people develop. It was clear that it wasn’t that.
[00:03:04] Dr. Miranda Melcher – Just Access e.V.: Got it. That actually makes a lot of sense given kind of the trajectory of your work since then, because something that we noticed as a consistent theme across your work is a focus on socioeconomic rights. And often we think of human rights that may not be what we first think of. We might first think of things like freedom from torture or the right to free speech or things like that.
[00:03:23] Socioeconomic rights can more often include things like right to water, right to health, right to housing. Is this experience in Nairobi why you’re so passionate about socioeconomic rights?
[00:03:34] Dr. Ashfaq Khalfan – Oxfam USA: Certainly for me, that’s one reason. But it just I saw many other reasons for it to be really important, you know, it just came, it became clearer and clearer that the choice, the attention that elites in the media in among the legal community around the world, their focus on civil and political rights represents a number of things. It represents upper class bias really of [00:04:00] those who, you know, it’s the barriers to entry to human rights law are high.
[00:04:03] And so it just reflects the views and experiences of those who are at that level, people who have had access to that training, the language, and it also represents a sort of colonial approach, right? I mean, when the human rights treaties, and the universal declaration of human rights were developed, it included both sets of rights and many of the developing countries, the Global South countries, were very vocal about that.
[00:04:29] It was a compromise that was agreed, but gradually, then you saw the domination of these spaces by the Global North, led to that heavy focus on civil political rights. So, yeah, it is a problem there. And, and really more and more it’s becoming clear. And I think more people in the human rights community are recognising this, certainly in Amnesty International where I later worked, there was greater acceptance of this, that when human rights, is not seen to represent the full aspirations of society, the aspirations of everybody, [00:05:00] it opens the door to cynicism, to the politics of division, politicians who preach scapegoating rather than inclusive vision. And I think the human rights community bears some responsibility for not having focused on the full set of rights that spoke to everybody in society.
[00:05:19] Dr. Miranda Melcher – Just Access e.V.: And this is obviously something you’re trying to work to rectify. And one of the ways that you’re doing that is as Founder-Director of the Center for International Sustainable Development Law. I will get used to that full title I’m sure at some point. Can you tell us about your motivations for starting the center and how you describe its sort of main goals and what it’s trying to do today?
[00:05:43] Dr. Ashfaq Khalfan – Oxfam USA: Sure. Yeah, it was I wasn’t the sole founder, it was a joint project by myself and and a colleague, Mary Claire Sager, who came from the environmental side. And I, you know, it was, it was intending to marry together the environment, economic, and law on social [00:06:00] development. It’s a bit of a, it’s a bit of a mouthful sustainable development law.
[00:06:04] Because it is not as common or well known, but you had areas of international law developing in silos, you know, environment, economic and human rights law and being treated as silos, even though you have to, any, issues like climate change, which we’re going to talk about or anything, water, land, food, you have to be considering each of these areas rather than having a law that, for example protects investments of, say, big multinationals, even where those might interfere with environmental or human rights objectives, that they need to be taken into account and balanced against each other. And that was the central insight of the center.
[00:06:48] I think it’s more it’s better understood in, you know, in these days that you have to that these intersections need to be addressed and dealt with. So that center was focusing [00:07:00] on it wasn’t an advocacy organisation. It was doing research and training, but certainly with an expectation of influencing policy and empowering, equipping changemakers around the world to be able to understand how international law can be used in their work.
[00:07:16] Dr. Miranda Melcher – Just Access e.V.: Wonderful. Thank you for telling us about the Centre. That’s only one part of your work though. I’d love to kind of talk about the other things that you’ve done. You’ve worked, what, for the Canadian Department of Justice, the Centre for Housing Rights and Evictions, for Amnesty International, and now at Oxfam USA.
[00:07:32] Can you walk us through that path? How did you end up where you are now?
[00:07:37] Dr. Ashfaq Khalfan – Oxfam USA: I think one thing that helped me was having a focus and I think, everybody who asks me for advice and on how to, you know, have a career in human rights. I generally advise them to pick one or two areas which really motivate them and to delve into it.
[00:07:51] In university, I, I, whenever I had a chance to pick a topic I did it on economic, social rights or and on environment aspects. [00:08:00] And so, I, I, started developing in that area. And as soon as I saw roles available in economic and social rights, I jumped at them starting at the Center on Housing Rights and Evictions.
[00:08:14] And eventually I moved on to Amnesty actually applied for roles there three times and was successful the third time. Sometimes just, you need to be in the right place at the right time. And Amnesty was really attractive to me because here was an organisation quintessentially identified with civil and political rights, but which had decided to make that shift towards economic and social rights incredibly exciting.
[00:08:36] And so I was really glad to be part of, part of that and to be part of what was initially a very small team working on economic social rights whch has now expanded gradually. Although I suppose like for every kind of legacy organisation, there is the challenge to be working in this area where you’re identified so much, when you’re constantly getting queries and demands to focus on [00:09:00] civil and political rights, but you want to expand to a socio economic rights. So, not that, easy to do in an organisation. But I think, there’s been good progress there. And increasingly within Amnesty, a few of us began to see that climate change was really one of the existential threats to human rights.
[00:09:19] For just, if I can give one example the projections for worst cases of climate change would mean that by 2070, many parts of the areas in the tropics would be uninhabitable, really. I mean you couldn’t exist there unless it was, you know, air conditioning throughout the hot seasons and it’s just completely untenable.
[00:09:38] There was a push within the organisation to take this up as an issue and you know, gradually the organisation, its highest governing body, made up of members representatives and decided, yes, this is an area of priority. We wanted to take it up. The issue wasn’t whether it was a human rights issue or not, it was more about whether, it should be taken on, whether [00:10:00] the organisation, some of the organisation’s resources, time should be devoted to it. Some people felt let’s leave it to the environmental organisations to, to deal with it. But I think the counter argument and what I felt many others felt is no, the human rights movement brings something unique and valuable to the work on climate change.
[00:10:18] And we should be part of that.
[00:10:21] So this is the long winded way of answering um, and that’s how I got into climate change. We set up a program of work and after at some stage I was encouraged to apply for a role at Oxfam and after being at Amnesty for about 11 years, I thought it was good to mix it up a bit and change.
[00:10:39] Although I’ve been very happy to stay in Amnesty, doing really good work on climate change and human rights, which is continuing.
[00:10:46] Dr. Miranda Melcher – Just Access e.V.: Well, and you’re continuing to do a lot of that work now at Oxfam USA.
[00:10:50] Dr. Ashfaq Khalfan – Oxfam USA: That’s right. I did that in order to be able to focus full time on, on climate. It just, it’s just such a big topic I felt I needed to focus on it.
[00:10:59] Dr. Miranda Melcher – Just Access e.V.: Yeah [00:11:00] and I’d love to turn our focus to that aspect of your work as well and a specific piece of it; climate litigation, this being a really big part of trying to work on these, as you said, the massive issue of human rights and climate. Why is climate litigation such a key part of this work?
[00:11:18] Dr. Ashfaq Khalfan – Oxfam USA: Because in terms of what human rights law and human rights contribution to climate change is this is one of it. I mean, this the stands out as one of the big contributions. We know that the Paris Agreement is not completely but very insufficient in terms of what it requires States to do, really, I mean, the only legal obligation, the only firm legal obligation on States is to come up with a plan about reducing their emissions and submit it on time and a commitment to various procedural things.
[00:11:53] There is a commitment also to providing financial technical assistance, at least for most of the global north [00:12:00] countries. But there’s no obligation on countries to do everything within their power to reduce emissions in a fast way. There’s, there isn’t an obligation to phase out fossil fuels.
[00:12:16] So it’s actually really, really weak. And if you look at what human rights law says, that States are obligated to take all measures within the I’m not using exact language, but I’m paraphrasing take to take all steps within their power to protect human rights, including the rights to water, housing, even life.
[00:12:36] It does require them to go much further than simply saying, oh, we’re going to phase out emissions by 2050. It’s a much stronger obligation if you look at it contextually. So yeah, the climate litigation is is an important tool to hold States to account based on their existing obligations already.
[00:12:57] Governments have obviously failed that just [00:13:00] through the political process has not been sufficient to hold States to account. So the litigation angle has been very, very important in increasing the scale of the ambition on States. It’s also going to become pretty important in terms of ensuring that the change is one which protects the most marginalised people.
[00:13:25] There are different ways in which the climate crisis are solved. It could be done in a way which addresses both emissions and inequality, but it could actually be done in a way which dramatically increases inequality. So, for example emissions could be reduced through huge shifts to renewable energy, but through a mineral supply chain that causes massive evictions that involves child labour in the production of minerals as happens in many parts currently, and could be done through use of offset, [00:14:00] basically trying to sequester large amounts of forests in order to maintain those as carbon sinks.
[00:14:05] But it’s expelling the people who live there from the land. That’s actually happened in some places. It’s called Fortress Conservation. So human rights law has a huge role to play in ensuring that the transition is fair and litigation is an, can be an important tool to achieve that.
[00:14:22] Dr. Miranda Melcher – Just Access e.V.: Litigation, however, is not the only thing you work on or the only tool in this project. Can you tell us more about what your, a random Wednesday is, what your day to day work involves, and how you balance the strategic litigation side of it and everything else?
[00:14:38] Dr. Ashfaq Khalfan – Oxfam USA: It’s a real, it’s a real challenge, but it, it has to be, it has to be done.
[00:14:42] Yeah, you’re absolutely right. I mean, there’s a continuum between political action and litigation. We know the litigation’s absolutely not going to be enough because, the judges know their limits to how far they can go without being accused of being completely undemocratic and of course, we can’t [00:15:00] count on judges.
[00:15:01] I mean, in some cases the judges are a big part of the problem themselves and it’s something very very hard for civil society to control whether you have a conservative judiciary or a progressive one. So yeah, those two things do need to go hand in hand. The best examples of litigation are those that combined campaigning, and there’s very good coordination between organisations that lead on litigation and those that lead on community. When you have groups that actually represent the communities or affected and who linked that up to national level political action.
[00:15:40] A regular day will often involve a really difficult trade offs, you know, do we work on the litigation aspect or do I work on the tax reform which is climate taxation is an area that at Oxfam we are working on a lot and it’s one where you don’t expect the courts to be delivering [00:16:00] on a great tax policy through litigation.
[00:16:02] I mean, that’s quite rare. So you’re constantly balancing, you know, one against the other, but it, it has to be done together in part because in many cases, you may get a great decision, but as we found at Amnesty and other places, implementing the decision can take a huge long time, and if you don’t have a mobilised civil society, a mobilised campaign ready to go and take it forward, it sometimes will not, will not get implemented.
[00:16:30] We saw that with, you know, even you’d think straightforward decisions like in the European court of human rights to end the segregation of Roma in classrooms, it took a long time and I think it still hasn’t been completely solved in the heart of Europe.
[00:16:46] Dr. Miranda Melcher – Just Access e.V.: So, in fact, that’s something I’d love to ask you about, given your perspective in the midst of all of this and balancing not just the strategic litigation, but what happens next. What has stood out to you about the big cases on [00:17:00] this topic that have already been decided?
[00:17:02] Dr. Ashfaq Khalfan – Oxfam USA: Yeah, you know, I can give some examples of cases on climate litigation, which have led to change. So Urgenda stands out as a decision where the Dutch government was required to reduce its emissions further than it had planned. So it actually did go back and strengthened its emissions reductions plan.
[00:17:25] The same in Germany with the Neubauer case, which addressed how the government was postponing emissions reductions to later in the 2030s, 2040s. which the court declared had put an unfair burden on the younger generations and so there it was required to change its its emissions policies.
[00:17:45] But, you know, we’re now seeing with the Klimaseniorinnen case which I know your podcast covered and now we have the Parliament in Switzerland saying we’re not going to admit it.
[00:17:57] So there are two challenges. One is this issue of the [00:18:00] full implementation, but the other is that even those decisions don’t go far enough we still would have catastrophic climate change, even if those decisions were implemented in every country around the world. It still will not be enough. So that’s, that is a case where we need to be, you know, using the courts as one lever, but political action to go further.
[00:18:24] Dr. Miranda Melcher – Just Access e.V.: This is very useful to understand, because it’s not like we haven’t had any big cases. But it’s also not the same thing as saying we’ve got these amazing cases that are perfect in every way. Right? It’s a much more complicated picture than that. So I wonder, given where we’re at in all of this, if I can ask you to pick up the point you mentioned earlier about advice you’d give to people looking to get involved, especially in this area in terms of cases and strategic litigation.
[00:18:53] Do you have any advice for people looking to get involved in this aspect?
[00:18:56] Dr. Ashfaq Khalfan – Oxfam USA: The area of climate is so huge and touches everything, [00:19:00] you know, and we will need to be looking at the impacts on wide sectors of society. So workers who don’t have adequate protection against the heat, especially outdoor workers. Communities being denied their access to well, I’d say the right to energy. So I would say that these are some of the next stages of, I mean, we still need to have the straightforward litigation against governments to reduce their emissions, but then we need to go more detailed and to advocate for the rights.
[00:19:34] So address, reduce emissions as well as dealing with the socioeconomic challenges in it. Across the world we’re experiencing backlash against climate mitigation measures, because we cannot be putting people in a position where they’re unable to secure their basic rights in order to protect the environment.
[00:19:56] We need, we need to be looking, pushing for smart [00:20:00] policies that address both things. So, for example supporting people in as we’re doing pushing for laws that support people in Michigan to insulate their homes to have access to renewable technology, to heat pumps, for example. We need to be pushing for those things rather than just straightforward imposing taxes on everybody in a undifferentiated manner to address climate.
[00:20:25] Another aspect is litigation against corporations. One famous case is again in the Netherlands against Shell, which was required to reduce its emissions and that’s a case that Amnesty we were involved in advising on at least. So that was that was quite successful in terms of Shell being required to reduce its emissions by 2030.
[00:20:50] But you know, there are many other corporations that also need to be sued. So, if I was to translate that into more concrete advice, it would be to to advise people to look at the [00:21:00] litigation from a, from an equality lens, as well as a purely climate lens.
[00:21:04] Dr. Miranda Melcher – Just Access e.V.: I think that’s very helpful advice and a bunch of different kind of angles that people might want to get involved in. So thank you for sharing that.
[00:21:11] Outro
[00:21:11] Dr. Miranda Melcher – Just Access e.V.: Thank you, Ashfaq, so much for speaking with us on this episode. To listeners, thank you for being with us as well. In our next episode, we’ll continue our conversation with Ashfaq, talking more about strategic climate change litigation, and also things to look out for and potentially ways to get involved yourself.
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