CLIMATE CHANGE AMBITIONS are being undermined by foreign direct investment disputes , say UJ law scholars
The beginning of 2021 saw several events which, at first glance, suggest there is space for cautious optimism that more ambitious and meaningful responses to climate change are gaining much- needed momentum.
“Foreign direct investment may be needed for the Paris Agreement to be effective, but resolving disputes about these investments should not reward non-compliance with climate change targets.” – Dailymaverick 1 June 2021.
Dr Jenny Hall, a senior lecturer in the Faculty of Law at the University of Johannesburg (UJ), together with Louis Koen, assistant lecturer and UJ PhD candidate, recently penned an opinion piece published in The Conversation, 1 June 2021.
On 3 February, for example, national cour ts showed their willingness to hold their government responsible to do what is required to meet the climate change challenge when the Administrative Cour t of Paris (ironically) found that the French government had failed to give adequate effect to its Paris Agreement commitments.
Then, just over two weeks later, and hot on the heels of his inaugural comments that “a cry for survival comes from the planet itself. A cry that can’t be any more desperate or any more clear now”, US President Joe Biden signed an executive order indicating that the world’s second-biggest emitter, the United States of America, was returning to the Paris Agreement. Governmental responses and critiques must be welcomed, but many of the greenhouse gas emissions that are causing climate change are emitted by big multinational companies, and positive action in this case has often fallen far short of the need for drastic emission reductions. Environmental victories in court, however, are starting to allow for some hope that this will not be condoned.
In the case of Royal Dutch Shell PLC and its subsidiaries, these judgments are important as they place the spotlight squarely on the intersection of human rights, pollution, climate change and corporate conduct. On 29 January 2021, the Hague Court of Appeal handed down three judgments on a matter that had been launched in 2008 relating
Dr. Jenny Hall
to long-standing community struggles against Shell’s oil
operations in Nigeria, which led to widespread pollution through oil spills and climate change as a result of gas flaring. The judgments are precedent- setting because, for the first time, a company based in the global North has been ordered to pay compensation for environmental damage done in a developing country.
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