The Right of Future Generation to a Safe Climate in the SADC Region

Abstract

The Intergovernmental Panel on Climate Change (IPCC) identifies Southern Africa, which encompasses all Southern African Development Community (SADC) member states, as a climate change hotspot facing irreversible environmental and climate-related constraints. Concurrently, resolutions of the United Nations Human Rights Council (UNHRC) and key instruments, such as the Maastricht Principles on the Human Rights of Future Generations, underscore the urgency to safeguard future generations from the adverse impacts of climate change. Future generations are increasingly being recognised within the global normative frameworks and jurisprudence of the United Nations human rights treaty system, as well as in national constitutions and legal decisions. However, at the sub-regional level within SADC, significant uncertainty persists regarding the existence, legal content, and protection of the right of future generations to a safe climate. Yet, normative standard-setting and legal interventions are essential drivers of protection. This study employs a doctrinal methodology and uses Zimbabwe, South Africa, Madagascar, the Democratic Republic of Congo, and Tanzania as case studies to interrogate the adequacy of normative standards within the SADC context. The findings reveal three key issues: firstly, there is insufficient legal recognition and protection of the rights of future generations at both the SADC and national levels. Secondly, SADC states continue to rely on environmentally unsustainable practices due to the inconsistent application and implementation of regional frameworks, compounded by their normative inadequacies, which exacerbate climate change and overlook climate mitigation and adaptation efforts. Lastly, Climate change poses a serious threat to a range of human rights relevant to future generations, including the rights to food, health, water, life, and a safe and healthy environment. The study concludes that a human rights-based theoretical framework is powerful for advancing legal pathways to protect future generations. These pathways include adopting an SADC Protocol for future generations, reinstating the SADC Tribunal's protective mandate for human rights, appointing a special rapporteur on the rights of future generations, and ensuring robust monitoring and reporting mechanisms for state responsibilities towards future generations. Also, the implementation of states’ obligations to respect, protect, and fulfil human rights can be effectively employed to address the climate crisis in the SADC region.