One of the activists who will be there will be Farhana Yamin, a distinguished climate change lawyer and leading activists with Extinction Rebellion (XR) in England. Earlier this year a conversation took place between Yamin and Mark Heywood (MH), social justice activist and editor of Maverick Citizen. Their conversation, below, reflects on how the climate crisis movement works with social movments and the law, comparing it with the experience of the Treatment Action Camapaign (TAC) in SA. It was facilitated by feminist AIDS activist, Robin Gorna (RG).
RG: To start with can you both tell us a little about the work you have been doing in social justice from a legal perspective?
FY: In 1991 when the environmental law, especially at international and European level, was in its infancy, international treaties were being created in the run up to 1992 Earth Summit I was lucky enough to qualify in this era of law-making and as a progressive lawyer at the time, I was thrilled to join an area where I could contribute to that law-making and help advise small island states in the climate change negotiations.
MH : Well, I’m not a trained lawyer. I’d describe myself as a legal practitioner and a legal activist.
My life in law begins slightly later than Farhana’s. It starts in 1994 in South Africa with the advent of democracy and two years later with the passing of one of the most progressive, far-sighted, ambitious human rights constitutions in the world.
Since then I’ve spent 25 years trying to use the legal frameworks in various forms: through litigation sometimes, through legislative drafting other times, through legal advocacy and policy reform… mainly around the right to health and access to treatment for people living with HIV.
We have used the law to great effect in South Africa. In fact South Africa is one of the few countries where the human rights constitutional project is still strong, although it is under strain.
So my background is that of an activist who sees advantage to using the law to advance human rights and social justice.
RG: Tell us what you think have been some of the biggest successes … how the law and movements work together, how they are synergistic. Where would you see the greatest success and achievements in the roles you have played?
FY : In the case of climate change, you have to understand that nationally and internationally law reform did not come as a result of agitation by movements but from scientists sounding the alarm. This is a really fundamental point.
It came because in 1989 scientists alerted the World Meteorological Organization (WMO) which then petitioned the UN General Assembly to say global warming was this really big issue for the whole of humanity.
The UN then mandated international negotiations which started in 1990 and resulted in the 1992 UN Framework Convention on Climate Change. Although lawyers and diplomats were involved, the negotiations then involved primarily meteorologists, scientists and experts. At the outset these negotiations involved a handful of NGOs, it didn’t involve social movements as such. The delegates from the small islands and poorer countries championed equity and social issues directly.
Fast forward to 2019 and we really see the way in which movements have only become involved in the last 10 years. In fact it was really only at the Conference of the Parties (COP) [to the Framework Convention on Climate Change] in Copenhagen in 2009 where climate change as an issue of social justice came to the fore; this was when understanding developed that climate change isn’t some abstract thing involving just gasses which experts can just vacuum out of the system or take other measures to end it.
It involves many issues that we deal with on a day-to-day basis in the human rights world.
It involves economic injustices, being borne by communities who didn’t contribute to the climate crisis.
As a result movements have been bolted onto an existing set of institutions and patterns, trying to fight to have a seat at the table of experts who are more comfortable with a more technocratic/pollution control mindset than with social justice discourse. I would say that lawyers have primarily focused on those insider negotiations on creating first the international rules and then implementing the international rules at a national level.
But then we woke up to realize that there was no public support for the implementation of these national laws we had put in place. We realised that there wasn’t enough of a public demand for reforming the fundamental tenets of the capitalist economic system, particularly its promotion of unbridled consumption and dependence on fossil fuels – things that are really causing runway climate change.
It’s only in the last 5-10 years where you see some significant coming together of movement-driven action for example on litigation, and on issues like loss and damage.
This is very distinct from other cases where lawyering and movement building have gone hand-in-hand as partners.
RG: So it has been an expert driven response with progressive lawyers getting behind expert evidence. In these last 5-10 years as the movements have been evolving, how have those movements came together?
FY: In the last 10 years, southern based coalitions have put forward “system change, not climate change” but they were seen as prioritizing development based on fossil fuels rather than climate-friendly development.
It was believed that system change based on giving the global south a greater share of power and natural resources was was more urgent than tackling climate change was looked at as an issue that would be dealt with later on or should be dealt with by the global norther who are historically the largest polluters .
I think the fundamental misunderstanding was in looking at the two as separate when they are not separate.
Climate change is part of the system and caused by the way in which the economic system is fundamentally organized.
So I would say that the environmental and the expert community, as it were, was working on climate change as if it was an issue that was divorced from the social and economic fabric of our societies. As a result the more radical movements were working and saying ‘we are not bothered by climate change because essentially day-to-day we are more worried about other issues … such as issues to do with the legacy of colonization and imperialism such as:
And many other day-to-day problems
All those day-to-day problems of poverty and inequality were first and foremost the lens from which we saw things.
Today we are realizing that there can be no social equality on a dead planet. The time has come when we realize that climate change that is already happening now is undoing decades of development. That’s one reason why we call it a ‘climate crisis’ – climate change creates humanitarian and human rights crises.
In September we saw the Bahamas being catastrophically hit by hurricane Dorian that was not even on the scale with which we measure hurricanes. The destruction it caused will take at least a decade to rebuild the fabric of that society and obviously the loss of human life is tragic and destroys families & is not something one easily recovers from.
So finally coming to terms with the human impact of what climate devastation really mean is bringing the different movements together.
RG: In the ‘AIDS world’ the human impact has been central and activism has been central. Mark, can you say a bit more about how movement building has been relevant to the work you have been involved in since 1994, including your legal work?
MH: The experience of HIV as a human rights issue is almost the exact opposite of what Farhana has described even though we are on the same side completely, in the sense that we built movements that press-ganged the law into their service and that saw legal and constitutional frameworks as an opportunity to legitimate and put power behind demands for better healthcare and education services.
I have been a political activist since before we got freedom in South Africa in 1994. But after we got freedom we realized the scale of the HIV epidemic and
what HIV threatened to do was take away the very freedoms and dignities that people had fought for as they tried to get rid of the yoke of Apartheid. Not many people saw it that way at the outset but that’s exactly what it did.
I think that we probably have set an example for the world how, in a particular set of circumstances, law can be enormously beneficial to a social movement.
The best example: We took our government to court in 2001-2002 challenging their refusal to provide medicines that would reduce the risk of a pregnant woman who had HIV transmitting HIV to the child.
At that stage when we went to court, 70 000 children were being born a year with HIV, and most of them would die within the first year of their lives. We won that court case.
Today, less than 2000 children are born with HIV and as a direct result of vertical transmission. That is a direct result of a continued legal advocacy and mobilization around access to treatment for people with HIV.
So South Africa, and not just on HIV, has sort of created the templates for how to use good human rights law when there is a population that understands that law and turn it into tangible social benefits.
RG: Could that case have happened without a movement?
MH: No. The result wouldn’t be identical because the thinking of the judges was shaped around the big movement going on outside, they knew what was going on outside the court and in society.
But, in purely legal terms, in terms of precedent and interpretation of constitutional law you could win the case.
However, what we have seen in South Africa and other places is that you can win big court cases and achieve a great judgment on paper – but with big court cases they don’t end with a judgment alone. Certainly not when it comes to human rights. If there isn’t a movement to pick up the pieces of paper that the judgment is written on and translate it into real life then very little may happen.
In South Africa we had a very important judgment on the right to housing, known as Grootboom, a few years before the Treatment Action Campaign case. But there was no movement behind that judgment. Consequently people are as homeless and deprived in South Africa today as they were 20 years ago.
By contrast, as a result of AIDS activism access to treatment, which is now available to everyone regardless of class, or gender, or where you live is the only issue in South African political and economic life where there is actually equality. That is because of this combination of law and a movement to enforce it.
RG: As these movements are beginning in the climate change space how do you see that changing the legal aspects of how we achieve results and justice?
FY : We have a whole range of litigation, for example, that is now being driven by community groups and NGOs. So we get the first winds from that process.
For example: 900 plaintiffs took the Dutch Government to court in 2015 and won a really significant legal victory based on tort law that said the Dutch Government have been negligent in setting their targets: that has resulted in the direct shutdown of a number of coal power stations in the Netherlands.
That in particular is a very important win, but it’s very early days in terms of it being copied in other parts of te world.
The vast majority of laws are inadequate with what science is demanding.
In a nutshell: the science is saying we only have five years essentially to bring carbon emissions under control. In order to stay within the safe parameters we need to start now, we have to act and change things today.
So a lot of the larger cases may end up taking 5-10 years because the fossil fuel industry has deep pockets and will fight tooth and nail all the way meaning it that will be too late to use the normal machinery of the courts to press for accountability, to overcome the inertia in the system that has built up, to challenge the inadequate legal targets that the governments have submitted via the international treaties.
In the case of USA one of the first announcements made by the Trump administration was to withdraw from the Paris Agreement which took almost a decade to put on the books.
We have now seen attempts in the USA to have legal liability exclusion for the fossil fuel industry; they are using their money and resources to make sure the law doesn’t get a hold of them.
That is where I feel we need social movements to create the demand for accountability and better systems. We need system changes that don’t limit themselves to a tweak to a law here, or a case victory there, but which challenge a whole global, political, economic, and financial system which is now shielding fossil fuel interests and extractive industries that destroy nature.
That’s where we are right now, the scale is so vast. It’s not limited to one company here and one company there. Depending on our ability to write laws and use legal precedent … I’m afraid that kind of lawyering is over
We don’t have that kind of lawyering and legal system available anymore. Also in many countries where fossil fuel emissions are still huge you have no abilities for communities to bring legal cases.
You are seeing a shut-down of the democratic space …
You are seeing a shut-down of the civil society’s ability to raise money, to have funds, to be in the media …
You are seeing the rise of authoritarian regimes that are literally imprisoning people …
Between four and seven Nature Defenders are being killed every week around the world …
We are really in times of crisis and we are in times where we need to fundamentally reconfigure how we behave as lawyers working in the system.
As I said I feel very lucky to become a lawyer in an era, in the 1990’s, where constitutions were being written, where human rights communities were rising to the challenge of trying to make laws work for people.
Now I would say we are in the opposite era where most of the environmental rules are being dismantled and the state’s ability to regulate is being challenged and being under resourced by austerity measures. This means our ability to use most of the regulatory wins that we have made are being diminished. So we need movements more than anything else to create much better systems than we had previously and to turn the tide against deregulation and austerity based budget cuts.
RG: So, as we see this sort of toxic system and hear the great urgency, how do you see that playing out in the work you have been doing and what do you foresee for the future?
MH: If you listen to what Farhana’s just said right now, you should be scared as hell. And I’m scared.
What she has just said is not fake news, it is evidence-based.
Her commentary on the law is that of an experienced legal practitioner, someone who has done a huge amount of work putting together what may not be a perfect framework but potentially a good framework. None of that work was wasted.
But suddenly we all realize that we are getting close to a tipping pointing and we have to act and do things differently.
The epiphany I feel I have had is that after about 35 years of being a social justice activist I fear that every advance that we have managed to make using the law in the way I have described working with social movements in health, HIV, education and democracy, all of that is now threatened because we know that if the scientific assessment and projections are true – which an unprecedented statement made by 11,000 scientists says they are — societies will be thrown into crisis
If you take the issue of health rights for example; in societies in crisis in Southern Africa there are already tens of thousands of people migrating because of climate crisis. That impacts on access to health care services …
In South Africa we are in denial about the extent of this crisis. Yet there are parts of our country that are with extreme drought at this moment.
People are only interested in Cape Town because that’s where lots of very rich people live.
Cape Town had their so-called “Day Zero” where the water was going to run out, that day zero passed and the rains came. But 200km further away, in the Eastern Cape, the rains didn’t come. The dams dried up and the animals began dying causing the people to migrate, changing disease patterns, people are being pushed into urban squalor where there is a higher risk of HIV infection, where young women are having to get involved in sex work in order to survive and so on.
So, climate change swamps all these issues and what I’m trying to work out is: How do we as human rights activists continue doing what we have been doing?
We can’t just drop our campaigns for health and education, democracy, anti-corruption, accountably and good governance.
So how do we get on top of it and put the climate crisis into every single organization working in law or human rights or dignity? Otherwise it’s all going to fall apart.
RG: Should we all just give up what we are doing and get behind the climate change emergency. Farhana, you just said we’ve got a decade. Should all these other movements shift direction for a while?
FY: No, not at all. What we all have to do is see our struggles as being the outcome of the same toxic systems.
So this domination of nature which is really at the root of the ecological and climate crisis goes hand in hand with extractive industries, with the legacy of colonialism, with imperialism and with partriarchy, which diminishes the rights of so many, including minorities.
We have the militarization of the world and a huge number of resource wars.
We have to look at what is the role of the survelliance, the police, the army, private militia and our militaries in defending a system that is going to lead to ‘climate Apartheid’. Those were the words of the UN Special Rapporteur on Human Rights and Extreme Poverty who produced a report showing how climate change will undermine human rights.
So I think climate change, surveillance capitalism and social systems that epitomize injustice are very much at the heart of what we need to tackle together.
And we won’t be able to do that through life-style changes or in our individual movement silos. We have to see the bigger picture at this point and try to rise to this challenge together.
For me that is the understanding, but how do we do that? How do we come together in this global network of movement building momentum (there are many terms for it I am not sure we have the right one): that I think is key.
The thing that gives me hope is our young people and the people on the front lines of ecological destruction, indigenous communities, people living in our tropical forests, activists in small island states; they are rising to the challenge, they have no intention of giving up at all. And they get the bigger picture and the interconnectedness of life on Earth and what is destroying it and also destroying their economies.
When you are fundamentally threatened, that’s when your survival instincts kick in.
In a way this may seem cruel but the HIV activists were facing death – stigma was a sort of afterthought – they were actually facing death.
At the heart of people’s struggles they faced violence and ultimately death and I think climate change was seen as this remote threat that would only happen 100 years down the line or if it came earlier riches/affluence would get us out of it. But what we are realizing now is that it is happening here and now and we cannot buy our way out of it.
The future of the youth is completely on the line, that is why they are striking as well. They understand that there will be no earth to live in if we don’t act now.
RG: We have heard it said that many movements are born from pain, we know that the AIDS movement came out of a direct pain, suffering and fear. When you look back at the work you have done over the last three decades, what are the key learnings you want to share with these young people who are getting passionate about climate change? What tips would you give them, particularly those working in the space between law and movements? What works?
MH: First of all, you may feel powerless but you have power, find that power! Actually, people in general have more power at this point in world history than we ever had before.
Despite everything that Farhana has said about the threats we face as civil society, which I agree with, we have power.
We have to find that power. You have to recognize that you are not going to succeed on your own. Band together with other people.
That doesn’t mean you have to go out and find a mass movement.
You can band together with people in your school, family, street. Then get on top of the evidence. Our strength in the HIV movement was that even the most poorly educated person became an expert on the science of HIV and the economics of HIV.
All people, young and old, need to understand the science of climate change, not only for going against any policy-makers but also for when we meet and discuss in forums like this so we can have discussions from an informed perspective.
Law and the legal frameworks remain a crucial instrument going forward that can help people to understand climate change, its overall impacts and its impact on us individually.
Lastly, don’t despair. In all my work, I have seen many bad things, I have dredged into the darkest, worst parts of life. I saw many comrades die of AIDS and been in nasty despairing situations and environments but I’ve always seen in the ordinary person a capability, intelligence and imagination to fix problems.
All manner of problems – local, national and global – and I’d like to think that we can find solutions to this particular problem as well.
In fact, Philip Alston, the person who wrote the report on climate change and human rights said this – and it links to the point Farhana has made – “we have to join the dots”. He said that perversely, “climate change and the climate crisis may present us with an opportunity to advance social justice”, because we won’t get everyone on board if we don’t say we are going to deal with
And so on…
They are two sides of the same coin, both driven by the same system we have often been afraid to call it what it is, saying that capitalism is at fault.
While it may be true that it’s the accumulation of profit-making, of immoral businesses that drives this destructive behavior it’s increasingly important to understand that there are better systems that can bring economic and social transformation and can make development safe and equitable.
RG: Farhana, you believe the way to tackle the current climate emergency is for a range of movements to band together. As you look back at the work you have done and forward at the work you are now doing, where would you see key points that interface between law and movements?
FY: I’m absolutely adamant that I’m going to do continue being a lawyer and increasingly support movements.
I think what was missing for me before was relying on existing law and creating news ones. I’m going forward and my advice to all professionals is: you are going to have to be activists too because you are a part of the community of people who have to redesign the system.
The system is now so broken, what we value in it, our roles in it, what it means to be a lawyer, financial auditor, account, a teacher and an activist is different but everyone is called to activism. Our laws are so unjust we might have to break some of them.
Everyone’s lifestyles and behaviors are at the root of this, what we want and how it’s produced is actually what is killing the planet. It’s causing some communities, countries and people to bear a very disproportionate price for that.
My advice: I’m returning to the UN for the Climate Action Summit in days after this interview in order to stay on track with some of the good things we have put in. We mustn’t forget that there are some good things that have come from our work, but we do have that “Once in a 100-year” moment to recast the system.
I think the most important opportunity to do that is through the Green New Deal being proposed by people like Alexandria Ocasio-Cortez and Bernie Sanders in the USA. After World War’s One and Two we had a fundamental rejigging of the rules of the game, we had a redistribution of wealth, national health systems came up, free education, major infrastructure for roads and social safety nets in place called the welfare state.
What we need now is an international Green New Deal, a 10-year program of fundamentally pivoting away from the old way of thinking to investing in the people and the planet so they are not at war with each other. Of investing in our green economy at the scale it needs and by prioritiesing expenditures so that historically maginalised and poorer communities gain the most and that social justice is at the heart of our thinking, not something to bolt on at the end.
I feel that is a vision really taking root with the youth movement, with the global climate strike movement and the Green New Deal being proposed in the US and many other parts of the world.
We need to define a legal route to get there, but underpinning it all is the fact that popular and powerful mass movements that must drive that vision.
Farhana Yamin is a leading international environmental lawyer and climate change and development policy expert. She has provided legal and policy advice to many different countries and constituencies over the last 20 years working as an adviser to developing countries especially the Alliance of Small Island States and least developed countries. She has been a Lead Author for Intergovernmental Panel on Climate Change for three assessment reports and was Director of the Basic Project which brought together experts and government representatives from Brazil, South Africa, India and China for the very first time in 2004 to 2008 to discuss climate policy issues.
The “Power of Law, Power of People” meeting took place in September 2019 and was convened by activists Katie Redford, Robin Gorna and Mark Gevisser. A collection of essays reflecting on this theme, written by activists from all corners of the world and edited by Mark Gevisser will be published in 2020. MC
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