Ashfaq Khalfan – Part 2

[00:00:00] Intro

[00:00:00] Hello and welcome to Just Access. Too many individuals and groups around the world today are denied access to justice. This access is vital for making human rights effective and securing human dignity, especially for those in situations of vulnerability, including women, children, minorities, migrants, or detainees.

[00:00:23] Dr. Miranda Melcher – Just Access e.V.: Through our podcast, we explore ideas about how to improve access to justice for all. Our motto is, everyone can be a human rights defender, and our goal with these conversations is to raise awareness about human rights issues. My name is Dr. Miranda Melcher, and I’m a Senior Legal Fellow at Just Access, and the host of this podcast.

[00:00:42] In this episode, I have the pleasure of continuing my conversation with Dr. Ashfaq Kalfan, who is the Director of Climate Justice at Oxfam USA. We will continue our conversation from the previous episode, where we talked more about his career, focusing on socio economic human rights, and moving [00:01:00] into strategic climate litigation.

[00:01:01] And here we will go into more detail about climate justice. what is happening in the world of strategic climate litigation, as well as his perspectives on human rights and how they can be improved to increase access to justice for all. We hope you enjoy the second part of our conversation.

[00:01:19] Interview – Part 2

[00:01:29] Dr. Miranda Melcher – Just Access e.V.: I’d like to ask you about some more detailed aspects, perhaps, of some of these cases, and what is currently happening in the world of litigation on climate issues in particular.

[00:01:41] The European Court of Human Rights has accepted that some States can have human rights obligations beyond their territories, but in pretty limited circumstances. And this debate, of course, is focused on the idea of jurisdiction. Can you tell us what it means for States to have jurisdiction [00:02:00] and why this is relevant when it comes to extraterritorial obligations?

[00:02:05] Dr. Ashfaq Khalfan – Oxfam USA: Sure. So in these cases the Court is looking at jurisdiction in terms of what is the scope of, to whom does a country owe human rights obligations?

[00:02:17] And the European Court has broadly reached a point where they’re saying that if a State controls territory, or if it controls people, it has physical control of people, even outside their country, then they owe the full remit of the obligations in the European Court of Human Rights, but not beyond that.

[00:02:40] And so I mean, jurisprudence has been messy and sometimes inconsistent, but where I think it’s at now is the States are not they’re not responsible for the effects of their emissions on people outside their borders. In the same way that if the planes bomb [00:03:00] somebody’s home, or if they poison a river flowing into another country, they are not responsible for the effects on human rights.

[00:03:11] It sounds crazy. And I respectfully submit to the Court that it is. We’ve said it in, in slightly more diplomatic fashion. So the good thing, though, is that among the regional international courts and human rights bodies the European Court is very much an outlier. So, virtually all of the United Nations human rights treaty bodies, the Inter American Court, and even the International Court of Justice have taken another approach.

[00:03:43] In general, where a State’s conduct has affected the rights of people outside its borders, they’ve held the State liable. I mean, there has to be like a clear link and a foreseeable link. You know, extraterritorial killings by drones a State is [00:04:00] responsible for that; pollution across borders that the States is held responsible by the Inter American Court.

[00:04:06] Yeah, the European Court has been I mean, I think their argument is that, oh, if a State has obligations to people outside its borders for its conduct it’s unpredictable, there’s no limits to it. Basically the Court has said that, you know, they don’t want to expand the remit of the Court in such a manner.

[00:04:26] Dr. Miranda Melcher – Just Access e.V.: But as you said, there are other courts that have different opinions about this. And I’d like to ask you about a particular aspect within this debate. The UN General Assembly has asked the International Court of Justice to clarify international law obligations and what States do need to do in relation to climate change, both in terms of extraterritorial stuff as well as more broadly.

[00:04:49] And this has come from some fabulous campaigns saying, making the exact point that you made of like, hang on a second, this doesn’t really make a lot of sense, maybe we should have another look at it. [00:05:00] Interestingly, from our point of view the General Assembly has asked the court actually something quite broad.

[00:05:05] Not just sort of specifically on one particular case, is country X responsible for river Y, but what is the obligation of States to protect the climate system, and what are the consequences for States that fall short of these obligations and maybe cause harm to other States, individuals, or communities.

[00:05:25] Can you break this down for us? What is the court actually going to have to decide?

[00:05:31] Dr. Ashfaq Khalfan – Oxfam USA: Sure. And yeah, I mean, hats off to the Pacific Island Students and their colleagues. I mean, they’ve been working on this for a long time, and they’ve created this amazing opportunity to strengthen international law, and international law on climate.

[00:05:45] So the Court, first of all, is going to have to deal with the question, and I think this is going to be an easy one for them ,which is what law applies. Many of the Global North countries, United States and others, have [00:06:00] generally taken the view that the Paris Agreement provides the framework for law on climate change, and that’s that should be the framework for what States do.

[00:06:10] In, you know, in many diplomatic forums they’ve often said that the human rights bodies shouldn’t really be dealing with climate change. There is a forum for this, which is the UN Framework Convention on Climate Change and the Paris Agreement and all the bodies associated with it.

[00:06:25] So that would be the first question. I think the court’s very likely to say no, the whole gamut of international law needs to be considered. So, for example, the international customary law, which effectively says that States should not cause harm , including environmental transboundary harm to other States.

[00:06:44] They will say that applies. They will very likely say that human rights law also applies. So that, that’ll be the first question.

[00:06:51] Then there’ll also need to deal with questions about what are the legal obligations of States in [00:07:00] general. So I would expect them to be saying something quite similar to what was said in the Klimaseniorinnen case about the obligation to reduce emissions. They’ll also have to address the questions about whether States have specific obligations to phase out fossil fuels and we will have to see how, in what degree of detail they’ll go in that regard, because the general expectation is that the Court is going to set up more general principles, particularly within such an advisory opinion that doesn’t focus on a particular country or case, that they will set up general principles.

[00:07:40] So some of the other things would be about the impacts on the right to self determination, I’m hoping they will also deal with the obligation to provide financial technical assistance as set out in human rights law. And they will also have to deal with the concept of breaches [00:08:00] and the right to remedy and reparations for harm caused.

[00:08:04] I think that they will be dealing with setting up these broad principles as they apply in the climate change regime. They won’t be talking about specific countries and duties to specific countries, but they may talk about duties differentiated based on the developing countries, the Global South.

[00:08:25] Dr. Miranda Melcher – Just Access e.V.: One reason you know so much about this is that Oxfam has submitted a written statement to the Court in these proceedings and you led the team responsible for putting this together. So, given kind of the broad scope of what the Court has in front of it, why did you decide that Oxfam should get involved in this and how does a team like yours go about preparing a written comment for something this big?

[00:08:50] Dr. Ashfaq Khalfan – Oxfam USA: Yeah. I’ve actually been waiting for this case for a long time. So the International Covenant on Economic [00:09:00] and Social Rights sets out obligations of international cooperation and assistance.

[00:09:06] And they set out the duty of States to respect, protect, and fulfill a whole range of economic, social, cultural rights within their borders and outside. Those obligations aren’t reflected in much domestic law. You know, a lot of domestic constitutions, legal systems don’t protect economic and social rights, and they don’t talk about extraterritorial obligations.

[00:09:25] So they’re very, it’s a very limited number of forums that can actually consider these rights. One of them is the Inter American Court of Human Rights, which is also considering a case on climate change and human rights, the International Court of Justice is the other.

[00:09:42] So when this case came up, it was an opportunity to have the ICJ address the issue of international cooperation assistance. The topic has been dealt with by human rights treaty bodies, so the expert bodies that monitor these treaties, but here now we have [00:10:00] a situation where a Court is able to make such a determination.

[00:10:04] So, this was a strategic moment to bring the issue to the Court, to a Judge on this issue. So we had actually already worked on this issue in our submission to the Inter American Court of Human Rights, where we talked about this issue, as well as the right to food and human rights defenders.

[00:10:24] So we actually did have a base of research and the team that was already ready to go. We had also a law firm with us that was helping Oxfam as well on that. And in terms of the actual choice of a topic, it was also taking into account what other organisations were doing.

[00:10:45] I think it’s worth mentioning that it’s such an important area such an important methodology to coordinate with colleague organisations, because the worst thing that could happen would be different organisations flooding the Court [00:11:00] with, repetitive submissions or even worse, significantly contradicting each other.

[00:11:04] So, the aspect of coordination, collegiality between groups is really, really important. So this was an area that others were not doing so it made sense to focus narrowly on this. And you know, of course, there are many other issues that we could have talked about, such as the right to remedy reparation, but other colleagues were doing that all the rights of future generations, but colleagues and I can mention the Center for International Environmental Law were taking care of that.

[00:11:30]

[00:11:30] Dr. Miranda Melcher – Just Access e.V.: So a big collaborative effort to make sure that all the pieces are covered especially given kind of the broad scope of the decision before the Court that you explained to us. Given all of this then, what do you hope the Court will say? If you could kind of magically get everything you wanted out of this decision, what would that be and how likely do you think that is?

[00:11:52] I think if the Court were to reaffirm the duty of States to reduce [00:12:00] emissions based on human rights law, that is something would be very good, and I think we’ll get that. Calling for a rapid phase out of fossil fuels would be would be wonderful. I don’t know if we’ll get that, that’s, that’s unpredictable.

[00:12:17] Or the Courts to point to the fact that the 1. 5 degree target does not meet human rights obligations, is maybe something unlikely for us to get, but if the court were to recognise that human rights were infringed, even under the current temperature, which is not a stretch, that would be great.

[00:12:37] I would want the Court to affirm the duty of States to provide financial and technical assistance and the duty to provide remedy, reparation. So the setting up these principles is, I think, realistic.

[00:12:53] What the court probably won’t do, but I wish it would, would be to go beyond that and [00:13:00] talk about the duty of particularly the States that are in a position to do so, to phase out fossil fuels and emissions well before 2050, and to point to the inadequacy of taking the view, oh, we’ll reach net zero by 2050, which is far too late, particularly for those for the richer States that, that could achieve much of this well before that. I doubt the Court’s going to go into that degree of specificity. That’s something perhaps for other courts in a later time.

[00:13:31] If, I mean, as you said, right, there’s a number of aspects of this that are unpredictable, but if, say, even some of those happen, I mean, maybe all of them, but even just some of them, what would the effect be of the Court agreeing with these opinions that you and the other organisations you mentioned have put forward, is this at the level of this would change the landscape of human rights globally?

[00:13:54] What, what sort of impact are we talking?

[00:13:56] Dr. Ashfaq Khalfan – Oxfam USA: I think it would have very significant impact. It [00:14:00] won’t, it might not be immediate. Well, it probably won’t be immediate. And I think people do need to have a bit of a realistic and expectation and take a longer term view. The Court’s decisions are treated as, I was going to say gospel truth, but that’s maybe not but they are taken very, very seriously by, by lawyers and particularly international lawyers. I mean, if the International Court of Justice has said something, that’s the state of the law.

[00:14:29] And so wherever courts, wherever a national court is able to take international law into account, this will have a massive impact. And, I think as many people know, some courts pay very little attention to international law, others pay a huge amount, such as Netherlands.

[00:14:50] You could contrast that to the United States where it’s the, you know, it’s role is quite limited. So the impact is variable, but it will influence court decisions and [00:15:00] influence political negotiations. I mean, the decisions of courts have meant the difference between whether a country is recognised as being independent or not.

[00:15:11] It played a huge role in decolonisation. So, I’d say it is important and the, the abstract legal principles affirmed and set out by the court will have many different manifestations over the course of the next couple of decades.

[00:15:28] The people who brought this case Vanuatu initiated this and, I mean, I have tremendous respect for them and their legal team. They’re an excellent legal team, they know what they’re doing. So, yeah, very, very hopeful what’s going to happen there.

[00:15:43] Dr. Miranda Melcher – Just Access e.V.: So, obviously this is a case we all want to be keeping a very close watch on. What other cases might we want to keep an eye out for in this realm of strategic litigation on climate change?

[00:15:55] Dr. Ashfaq Khalfan – Oxfam USA: Well, there’s, the case against [00:16:00] Norway for production of fossil fuels. It’s coming before the European court. Where you know, the argument is being made that, well, you know, if we’re not actually burning the oil ourselves, you know, so it’s not our responsibility.

[00:16:15] So that’s a, that’s an increasing area of litigation. There’ll be many other cases to go back to the extraterritorial obligations aspect, challenging companies because there is a clear pathway to do that, to challenge corporations in particular for the impact on people both within and outside their borders.

[00:16:36] And there’s currently the case of a Peruvian farmer against a German corporation and that’s being litigated in Germany. So they are many interesting possibilities for, of cross border litigation that has been that has been successful, for example, in holding corporations to account, say, for their oil pollution in their operations.[00:17:00]

[00:17:00] And the same principle could apply to to climate change. There is a lot of emerging litigation especially in the Global South on adaptation to climate change, which will be hugely important because obviously the people who are affected most tend to be people who are already vulnerable, you know, peasant farmers, particularly women peasant farmers, outdoor workers, the like.

[00:17:25] Dr. Miranda Melcher – Just Access e.V.: So, staying on this big picture level but even zooming out further from specific cases, if we go back to the very beginning of our conversation talking about your work in this area overall, right, prompted from very early on and pursued throughout, you have an ability to look at all of these sorts of issues not just climate litigation, but climate generally, socioeconomic, human rights more broadly…

[00:17:49] From that point of view, what do you think are some of the biggest gaps in access to justice that we currently have? And are there any sort of low hanging [00:18:00] fruit solutions that are out there that we might want to focus on?

[00:18:04] Dr. Ashfaq Khalfan – Oxfam USA: Yeah, when I was at Amnesty, we worked on the issue of the legal enforcement of rights, and sometimes there’s a depressing range of barriers.

[00:18:13] One of them is just the lack of recognition of economic and social rights in many constitutions. They’re very well recognised in, in some, particularly in, in many of the many global south countries countries that we found that many countries that had reformed their constitutions in the last 10, 20 years had actually included economic and social rights, which was great, but you still had the whole range that didn’t, and so there were often, you’d often have to address these rights through convoluted means or through reinterpretations of what the, of the scope of the right to life, you know, which is great, but is very much up to the discretion of judges. So that another barrier is judges taking a [00:19:00] conservative approach in the sense of, saw this a lot in Brazil, being willing to provide medication or require the State to provide medication to somebody who lacked it, but not being willing to order structural remedies to change the health system or to change a health policy, whereas some courts are more willing to do that. Then there are the other sort of lack of access, which are, I suppose, better well known, like access to legal aid other barriers, such as standing or restrictive rules on standing. And I mean, another barrier is non implementation of a judgment. I mean, that’s probably one of the most frustrating aspects, you know, where you win the case, but it’s not implemented. In terms of, it’s hard to think of low hanging solutions because all of these are so, can be so, so big. But In the sense that where the political will is there it, you know, it can be done.

[00:19:55] It’s recognising rights or empowering a [00:20:00] human rights commission to monitor or other body to, to monitor a judgment. Those are things that can be, it can be done but, but all of it is a, yeah, it’s a long road. But, you know, just, it just has to be done.

[00:20:15] Dr. Miranda Melcher – Just Access e.V.: Yeah, no, of course. I have two final questions kind of staying in this big picture realm but also maybe trying to find a bit of optimism and steps forward given that this is such a big long term project that, as you say, has to be done. So amongst all of this, what’s one or two things that you might be most hopeful about?

[00:20:35] Dr. Ashfaq Khalfan – Oxfam USA: Sure yeah, and I think it’s important, and thank you for the question, it’s really important because I, it’s, I don’t want to depress people because the reason it has to be done is because the payoffs can be huge. In India, it’s estimated that hundreds of thousands of girls went to school that wouldn’t have as a result of school feeding programs that were put in place as a [00:21:00] result of litigation on the right to food in India.

[00:21:04] In South Africa, the medication to prevent mother to child transmission of HIV was rolled out on a massive scale as a result of litigation in the courts in South Africa, treatment action campaign. It was litigation together with campaigning, but enormously successful. And so there are, you know, when all of these different things come together then the effect can be enormous and transformative.

[00:21:34] And these often come when when the political route is blocked. So this legal route comes in. I suppose what I want to say to people that is there is a way, you know, like if you’re blocked at one stage, you go around and find another way.

[00:21:47] And litigation can be one of those ways to achieve it. And so it is important to be really farsighted and to be thinking not just about the next three, four years, but thinking about putting in [00:22:00] place something that’s going to be transformative. And stand there for decades, years, even centuries to come.

[00:22:07] So through things like, you know, entrenching the legal recognition of a right. And that’s something that can, you know, change the world forever.

[00:22:16] Dr. Miranda Melcher – Just Access e.V.: So maybe, hopefully, contributing to that idea of changing the world in the short, medium, and ideally long term: as a final question what one or two things could anyone listening to this go out and think about trying to do to help?

[00:22:33] Dr. Ashfaq Khalfan – Oxfam USA: Yeah, it would be to not get discouraged, but to be thinking and, and thinking really hard about, you know, where you are, what skills you have, what opportunities you have, what challenges you have.

[00:22:47] Think of what are the two or three things where you feel you could be making a contribution and then, you know, really pursue them with with energy and diligence and the opportunities will often, there’s [00:23:00] often quite a bit of creating that opportunity, but there is also the point of looking out for those options and being patient and persistent.

[00:23:10] You know, things, things don’t get solved quickly and it really pays to to take the long view and to be quite resilient at it. The rewards can be, can be huge.

[00:23:22] Dr. Miranda Melcher – Just Access e.V.: Amazing. Well, thank you so much for ending on that optimistic note of let’s all work together in the longterm to solve these problems.

[00:23:30] And thank you so much for sharing your time and expertise with us and understanding what’s happening now, what we can look forward to, and what we can work on together. Thank you so much for joining us.

[00:23:40] Dr. Ashfaq Khalfan – Oxfam USA: Thank you, I’ve enjoyed the conversation and these are great thought provoking questions.

[00:23:44] Outro

[00:23:44] Dr. Miranda Melcher – Just Access e.V.: Thank you again, Ashfaq, for speaking with us. And to listeners, thank you for listening! If you’re enjoying the Just Access podcast, please tell your friends, like us and share us on social media. Please also [00:24:00] rate us and leave us a review on your favourite podcast app, we’d love to hear what you think.

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[00:24:22] Until next time!

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