Written by Julie Smit, PCFS Europe
Can fossil fuel corporations be made accountable or even legally responsible for human rights violations linked to climate change? This fundamental question was the subject of a recently concluded investigation carried out by the Commission on Human Rights (CHR) of the Philippines to determine the impact of climate change on the human rights of the Filipino people and whether fossil fuel companies as the largest corporate contributors of greenhouse gas emissions could be held accountable.
The conclusions of the three-year investigation were announced on December 9 2019 during the COP25 in Madrid by CHR Chairman, Roberto Eugenio T. Cadiz. At a side event entitled “Addressing Access to Remedy and the Business and Human Rights Dimension of Climate Change” organized by the UN Office of the High Commissioner for Human Rights (OHCHR) and the Organisation for Economic Co-operation and Development (OECD), Cadiz, said “We have found, based on the evidence presented before us and also our own research, that 47 of the world’s largest fossil fuel and cement companies, known as the “Carbon Majors”, have played a clear role in anthropogenic climate change and could be held legally and morally liable for its impact, especially on vulnerable communities in the Philippines.”
The investigation had been carried out in response to a petition filed before the Commission in 2015 by a group of fourteen Filipino human rights and environmental groups and 18 individuals who had been affected by climate change. The group was headed by Greenpeace Southeast Asia (Philippines).
In the Petition, the group drew attention to the fact that climate change interferes with the enjoyment of Filipinos’ fundamental rights, such as the right to life, the highest attainable standard of physical and mental health, to food, water, sanitation and adequate housing and requested the CHR to conduct an inquire into whether the fossil fuel companies could be held accountable for the violation of the human rights of Filipinos.
According to the latest Germanwatch Global Climate Risk Index published in December 2019, the Philippines not only figured among the countries most affected by climate change in 2018, but has continuously ranked among the most affected countries over the past twenty years. This means that those affected are often hit by extreme weather events while they are still trying to recover from the preceding one. Five of the deadliest ten typhoons have occurred since 2006.
Questions of jurisdiction
At the outset, the Commission’s authority to investigate the case was questioned. A number of the oil companies concerned asked for the Petition to be dismissed, pointing out that the Commission has no jurisdiction over most of the parties to the case, as they are not based in the Philippines.
The CHR countered this argument, referring to the United Nations Guiding Principles on Business and Human Rights , which states: “The responsibility to respect human rights is a global standard of expected conduct for all business enterprises wherever they operate. It exists independently of States’ abilities and/or willingness to fulfil their own human rights obligations, and does not diminish those obligations. And it exists over and above compliance with national laws and regulations protecting human rights.”
The oil companies also questioned the Commission’s authority to deal with issues of economic, social and cultural rights, as according to the Philippine Constitution its mandate is only to examine cases involving civil and political rights. The Commission rejected this criticism too, arguing that the Petition did in fact allege violations of civil and political rights. Also, the Commission has a mandate to investigate and monitor all allegations of human rights violations affecting the Filipino people . Finally, the Commission pointed out that “all human rights are inter-related, inter-dependent, and indivisible. Thus, one cannot consider civil and political rights separately from economic, social, and cultural rights”.
The challenge of framing climate change as a human rights issue
Various attempts have been made in the past in regular law courts in various countries to link the impact of climate change to the activities of fossil fuel companies, however all have so far been unsuccessful. In view of this, the option of approaching non-judicial mechanisms, such as human rights institutions was examined by affected groups. This Petition to the CHR is the second attempt to try to establish the connection between climate change and human rights; in 2005, the Inuit people had tried to do so in a case filed before the Inter-American Commission on Human Rights (IACHR), an organ of the Organization of American States but the IACHR refused to accept the case.
The CHR inquiry constitutes a legal precedent it is the first time that a human rights institution opened a process to hear this kind of case.
In order to demonstrate the specific link between human rights and climate change, the Commission referred among others to Resolution 7/23 adopted in 2008 by Human Rights Council , which states that climate change “poses an immediate and far-reaching threat to people and communities around the world and has implications for the full enjoyment of human rights.”
Treading new ground
In a presentation of the Commission’s work on completion of the investigation, the Commission chairperson explained that in dealing with the case it had been confronted with a completely new situation, as there had been no legal precedent that they could refer to; this was the first case worldwide to be accepted for investigation in which climate change is presented as a human rights issue. They therefore had to devise their own processes for the investigation. From the outset, the Commission had underlined the fact that, as an inquiry by a National Commission is not a judicial proceeding, its findings are in no way legally binding. It was purely investigatory and recommendatory in nature and there would be no question of awarding damages or bringing charges against the companies concerned. Its approach was based on the principle of persuasion – the oil companies were “invited” rather “summoned” to participate as respondents in what was referred to as “dialogues” on climate change.
The Petition was served to the 47 fossil fuel investor-owned companies, including Chevron, ExxonMobil, BP, Repsol, Sasol, Total and Royal Dutch Shell in July 2016.They were invited to submit their reactions within 45 days. Only 14 out of the 47 responded and almost all of them refused to accept the Petition on procedural grounds. None of them participated formally in the various hearings, however a number of company lawyers attended the proceedings “incognito”.
In the course of the investigation the Commission organized several fact-finding missions and community dialogues in areas that had been particularly affected by the impact of climate change, especially in the regions hit by the massive Typhoon Haiyan that struck the Philippines in 2013, killing over 6,300 people, displacing four million others from their homes and devastating vast areas of farmland.
To emphasize the fact that climate change and its causes are global issues, the CHR decided to hold two hearings outside the Philippines, one at the New York Bar Association and one at the London School of Economics, where they were able to receive further testimonies of victims of climate change and hear opinions from more experts in the field. In New York, for instance, a 21- year old social work student and Haiyan-survivor, now living in the US, testified to her experiences at the time and on the impact that it had on her life and future plans.
Findings of the Commission on Human Rights
Announcing its findings at the COP25, Commissioner Roberto Cadiz pointed out that, while legal responsibility for climate damage is not covered by current international human rights law, the fossil fuel companies have “a clear moral responsibility” and an obligation to respect human rights as defined under the United Nations Guiding Principles on Business and Human Rights. He added that it may also be possible to hold companies criminally accountable in cases where it is clearly proven that they have engaged in acts of “obstruction and wilful obfuscation”. The CHR believes that existing civil law in the Philippines would probably make it possible to take legal action against companies.
In a reaction to the CHR findings, Carroll Muffett, president of the Center for International Environmental Law (CIEL), said that the Commission’s recognition that there is evidence of criminal intent in the companies’ climate denial and obstruction is particularly significant. She added: “Both for civil and criminal liability in jurisdictions around the world, the Commission’s findings in this inquiry represent not an end of the legal investigations into carbon majors companies but a major new beginning for them”.
The petitioners, civil society groups and law groups working on climate and rights were delighted at the Commission’s findings. At a press conference in Manila, at which the results of the investigation were presented, Lea Guerrero, Country Director of Greenpeace Philippines said “The findings are a landmark victory for communities around the world who are at the frontlines of the climate emergency. This is the first ever finding of corporate responsibility for human rights harms resulting from the climate crisis. The outcome goes beyond the Philippines and can reach every single human being alive or yet to be born. We believe the findings provide a very strong basis not just for future legal actions against big polluters, but also for citizens and communities to confront inaction by companies and governments in the streets and in the hallways of power.” ###