Discussion Brief No.2, written by Robert Kibugi, Senior Lecturer, Faculty of Law, University of Nairobi.
Thoughts from the Nairobi Conference: Environmental Law from Below: Grassroot and Human Rights Perspectives on the Human Environment Agenda (Stockholm+50)
On 27 September 2022, a one-day conference was held at the University of Nairobi, focused on Climate Justice, Grassroots Activism and Human Rights Law. The conference was titled “Environmental Law from Below: Grassroot and Human Rights Perspectives on the Human Environment Agenda (Stockholm+50).” It was organized through a collaboration between The Raoul Wallenberg Institute of Human Rights and Humanitarian Law, China Dialogue Trust, and the Faculty of Law at University of Nairobi. A technical team from the collaborating institutions conceptualized the conference and developed the programme and agenda of the one-day conference. The team ensured that selection of the speakers represented a cross-section of stakeholders. Importantly, the choice of speakers ensured that the voice of scholars and practitioners based in the global south was heard, and a particular emphasis was placed on African scholars. The conference was divided into open and closed, invitation only sessions. The latter were based on the Chatham house rules, to enable participants give their opinions freely. More information and the recording of the first session is available at: https://rwi.lu.se/news/stockholm-50-anniversary-conference-in-nairobi/
This discussion brief is one of two written outcomes of this conference. The first discussion brief examines the human right to a clean environment, and its role in enhancing grassroots voice and activism.
This discussion brief is focused on a key theme of discussion and debate, i.e., the question of south-south cooperation, and the impact this has on the respect, protection, and fulfilment of the human right to a clean and healthy environment, as well as civil and political rights. This is because while south-south cooperation takes many forms, it includes economic cooperation as well as soft cooperation, such as peer-to-peer learning. South-south economic cooperation can be exemplified through lending for project finance by China to many developing countries in Africa, Asia, and Latin America. The African Continental Free Trade Area (AfCFTA) is another emerging south-south cooperation domain that could impact the human right to a clean and healthy environment through trade. Similarly, there is emerging south-south economic cooperation where grassroots activists from across developing countries learn from each other regarding tools, and approaches that can enhance protection of the human right to a clean environment. South-south cooperation is a sub-set of international cooperation, and very instrumental to fostering vibrant social, economic, and environmental relations between comparable countries in the global south.
2. Understanding South-South Cooperation
South-South cooperation arises where bilateral or multilateral relations are established between nations in the global south. The term global south has been used to denote nations in Asia, Latin America, Caribbean, Oceania, and Africa that are generally not amongst nations in Europe, Oceania, Americas, and Asia that are considered to be economically advanced. For purposes of this discussion brief, the term developing countries will be used instead. Cooperation of this nature does not only imply relations between governments, or states, but also collaborations between citizens including groupings in academia, or civil society.
South-south cooperation is not value neutral and is driven by the objectives of the participants. In context of economic cooperation, the lenders, or investors have their own objectives, sometimes dissimilar to the borrowers, or recipients of the investments. A key concern relates to how such lending or investments, e.g., from China relates with safeguarding environmental rights. The environmental rights approach of the Exim Bank of China is often contrasted with the approaches taken by multilateral banks in the same space, such as the World Bank, or the African Development Bank (AfDB). The former enjoins borrower nations to apply their own environment protection rules; while the latter banks have their own environmental safeguards rules that they generally require borrowers to apply. As a continental bank for Africa, the AfDB can be an enabler of intra-African south-south cooperation for nations to learn from each other concerning respect and protection of environmental rights when implementing large-scale investment projects.
The Agreement Establishing the African Continental Free Trade Area (AfCFTA) has, as one of the objectives, the creation of a “single market for goods, services, facilitated by movement of persons in order to deepen the economic integration of the African continent.” This objective demonstrates a unity of purposes between African nations to foster economic advancement through promotion of trade in goods and services. A contrasting trade cooperation that denotes North-South cooperation is the African Growth Opportunity Act (AGOA) enacted by the US Congress (2000-2025) which provides duty-free treatment to goods of designated sub-Saharan African countries, especially textiles.
In terms of south-south learning, there many developing countries in Africa, Asia, Oceania or (Central and Latin) America that have made tremendous gains on environmental protection. Formal and informal arrangements for peer-to-peer learning between civil society actors, and academia from these nations and societies is critical to the germination of more environmental rights conscious actors.
3. Impact of south-south cooperation on human rights and grassroots activism
Treatment of environmental rights in south-south driven lending and investments:
As explained earlier, the most pertinent form of south-south driven financial lending and investments is between the Peoples Republic of China and developing countries in Africa, Asia, and the America’s. A 2018 report by International Institute for Environment and Development (IIED) examining Chinese investments in Tanzania, Zambia and Zimbabwe argued that environmental sustainability remains a thorny issue in the broader China-Africa relationship. The report argued that while Chinese investments had immediate positive economic and livelihood opportunities, these benefits maybe compromised in the long term high environmental, safety and economic risks, such as erosion of the resource base, toxic-metal pollution of water and soil, severe injuries, and potential industry collapse. This notwithstanding the credit financing of projects in developing countries by China remains extensive. The Peoples Map of Global China is a website that documents profiles of countries and projects, sortable by project parameters, Chinese companies and banks involved, and their social, political, and environmental impacts. This website has documented around 50 projects developed through Chinese financing in context of south-south economic cooperation. Importantly, for each of the documented projects, the map has highlighted various impacts including environmental, land, community rights as well as governance. Illustratively, examples of negative environmental impacts can be seen for a proposed coal power project in Kenya, Abuja-Kaduna Railway project in Nigeria, or the Rio Blanco Mining Project in Ecuador. The impacts indicate a need for enhancing the legal rules required to safeguard environmental rights, community land rights during expropriation, or to address climate resilience gaps in order to make this south-south cooperation more meaningful.
Opportunity for south-south cooperation on environmental rights and climate action within intra-African trade:
A key concern regarding trade cooperation is treatment of environmental protection. The AfCFTA for instance, recognizes the importance of protecting the environment, and human rights in the preamble, but not in the substantive trade provisions. The same agreement does not make any reference to climate change, or the fact the trade within Africa should enhance resilience to climate change. If aligned with addressing climate risks facing the continent, and therefore address climate justice, the AfCFTA could become a conduit for climate financing through promotion of trade in goods and services that address climate risks, and the concomitant environmental challenges. Bengoa et al (2021) have found that AfCFTA member countries should support each other in their efforts to reduce GHG emissions by investing in renewable energy infrastructure and work on environmentally sustainable practices and incentives, such as increasing trade in renewable energy equipment. Manduna and Fundira (2022) note that while the AfCFTA makes minimal references to the environment, it can be adjusted to support environmental and climate change actions. This includes through implementation of policies that will make trade-related sectors such as energy and transportation greener, as well as policies that ensure that sustainable agricultural practices are advantageous to farmers. They however caution that the continental trade agreement can be a double-edged sword that contributes to environmental degradation and climate change. This can occur if significant efforts are not made to have the trade driven by policies that respect environmental protection, environmental rights, and addressing climate risks in a manner that builds resilience. Thus, south-south cooperation within the African continent amongst AfCFTA parties is required to drive this agenda that mainstreams protection of the environment, respect for environmental rights and climate action.
South-south peer-to-peer learning on environmental rights:
Developing countries have made progress in legally recognizing and enforcing the human right to a clean and healthy environment. The 1981 African Charter on Human and Peoples Rights recognized the right of all people to a general satisfactory environment favorable to their development. More recent recognition of the right of every person to live in a healthy environment is through the 2018 The Escazú Agreement applicable to the Latin American and Caribbean regions. Many developing countries either have this right enshrined in their Constitutions, or through statute law. As countries pursuing socio-economic transformation, developing countries have live challenges trying to prioritize environmental protection, and rights while pursuing resource-driven economic growth.
At national level, in the different countries, citizens, as well as interest groups including civil society and academia, have different experiences concerning environmental rights. The status of civil and political rights within a country, including right to public participation, access to information, freedom of assembly, access to justice, rights of accused persons or protection of environmental rights defenders, etc., have a bearing on fulfilment of environmental rights. There is opportunity to foster peer-to-peer learning amongst civil society and academia in context of south-south cooperation, and to build networks that provide capacity support when needed. Peer to peer learning can be organized or spontaneous, and can be physical, or online or through a hybrid of both. The important point is that it delivers both the capacity and support needed to foster civil and grassroots action towards robust protection of environmental rights, and integration of climate action in governmental policy.
4. Key recommendations
There are various tools and pathways through which south-south cooperation can be fostered in a manner that upholds environmental protection and rights, and enhance grassroot actions:
- Regularly, candid discourse driven by empirical evidence should be had concerning the impacts of south-south project financing on the environment, land rights and related governance aspects. It is important that such discourse is informed by empirical evidence in order to maintain objectivity but also draw valuable lessons. While this discussion brief has used lending by China for illustration, there are other forms of south-south economic cooperation that can be reviewed. The discourse can inform gap analysis in law and policy to determine, for instance, which regulatory deficits are permitting negative environmental impacts and how they can be resolved.
- As identified, south-south trade cooperation is important but can be a double-edged sword that can exacerbate environmental harm and climate vulnerability. Thus, implementation of south-south trade arrangements, whether bilateral, or multilateral like AfCFTA, should deliberately ensure that environmental and climate change requirements are not viewed as non-tariff barriers.
- Citizens in various developing countries have different experiences concerning fulfilment of environmental rights, and other necessary civil and political rights. There is therefore a learning opportunity (peer-to-peer) through which actors (activists, civil society, academia, local communities, etc) can learn from each other and enhance their skills, or tools that they can deploy to improve environmental rule of law at home.
 Agreement Establishing the African Continental Free Trade Area, article 3.
 Weng, X, Buckley, L, Blackmore, E, Vorley, B, Schoneveld, G, Cerutti, P O, Gumbo, D, Moombe, K B, Kabwe, S, Muzenda, J, Mujeyi, K, Chacha, M, Njau, M and Jønsson, J (2018) Chinese investments and Africa’s small- scale producers: disruptions and opportunities: Empirical analysis of primary sectors in Tanzania, Zambia and Zimbabwe, IIED Research Report. IIED, London. P. 6.
 Weng, X, Buckley, L, Blackmore, E, Vorley, B, Schoneveld, G, Cerutti, P O, Gumbo, D, Moombe, K B, Kabwe, S, Muzenda, J, Mujeyi, K, Chacha, M, Njau, M and Jønsson, J (2018) Chinese investments and Africa’s small- scale producers: disruptions and opportunities: Empirical analysis of primary sectors in Tanzania, Zambia and Zimbabwe, IIED Research Report. IIED, London. P. 102.
 Marta Bengoa, Somya Mathur, Badri Narayanan, , Hanna C. Norberg (2021) Environmental Effects of the African Continental Free Trade Agreement: A Computable General Equilibrium Model Approach Journal of African Trade. Vol. 8(2); December (2021), pp. 36–48. DOI: https://doi.org/10.2991/jat.k.210719.001 ; p.46.
 Calvin Manduna & Taku Fundira, (2022) How to Ensure that the African Continental Free Trade Area (AfCFTA) Propels Africa’s Green Transition. Heinrich-Böll-Stiftung Washington, DC, and Africa Policy Research Institute, May 2022, p.1.
 Calvin Manduna & Taku Fundira, (2022) How to Ensure that the African Continental Free Trade Area (AfCFTA) Propels Africa’s Green Transition. Heinrich-Böll-Stiftung Washington, DC, and Africa Policy Research Institute, May 2022, p.4.
 The Regional Agreement on Access to Information, Public Participation and Justice in Environmental Matters in Latin America and the Caribbean.
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Featured image: Hu Chen