The Growing Tide Of ESG Litigation: What's In Store For Namibia?

• Published date: 01 June 2023
• Subject Matter: Corporate/Commercial Law, Environment, Government, Public Sector, Litigation, Mediation & Arbitration, Corporate and Company Law, Corporate Governance, Environmental Law, Class Actions, Human Rights, Climate Change
• Law Firm: ENSafrica
• Author: Camelot Brinkman and Vanessa Boesak

In recent years, there has been a significant global spike in litigation relating to a variety of Environmental, Social and Governance ("ESG") issues. Specifically, the institution of legal challenges geared towards climate change mitigation against oil giants or high carbon-emitting industries has been on the rise.

The legal landscape is seeing an uptick in cases where litigants successfully argue that state entities and corporations have a duty to mitigate climate change, under the umbrella of human rights principles. This implies an expanding understanding that human rights protection, current and future, entails defending all individuals from harmful environmental impacts.

Namibia's domestic and international commitments

Namibia has committed, both domestically and internationally to the implementation of climate change mitigation strategies. As observed with the ESG and climate litigation cases in other jurisdictions, such commitments have underpinned litigants' cases in holding states and corporate actors accountable for their actions (or inaction) in contributing to the climate crisis.

UN Guiding Principles on Business and Human Rights

Namibia has assented to the UN Framework on Business and Human Rights. This framework categorically recognises that states must protect persons within their jurisdiction from human rights abuses committed by corporate enterprises. Corporate enterprises are similarly given the responsibility to respect human rights wherever they operate, regardless of their size or industry. This responsibility means businesses must know their actual or potential impacts, prevent and mitigate abuses, and address the adverse impacts of the activities in which they are involved.

Nationally Determined Contributions ("NDCs") under the Paris Agreement, 2015

Namibia is a party to the Paris Agreement, 2015 which is a legally binding international treaty that sets long-term goals to substantially reduce global greenhouse gas emissions to curb the global temperature increase. In pursuance of the Paris Agreement, each country is expected to submit an updated national climate action plan - known as an NDC. By way of the NDC, Namibia has committed to take actions to reduce its greenhouse gas emissions - as much as 91% below business as usual by 2023 - to reach the goals of the Paris Agreement.

National Policy for Climate Change in Namibia

Namibia has implemented a national framework that provides guiding principles for the adoption of mitigating...