Acting on a Petition,[1] the Commission on Human Rights of the Philippines held an inquiry on the responsibility of the world's largest investor-owned fossil fuel and cement corporations for human rights abuses resulting from the impacts of climate change.[2]
Hearings attended by experts from different countries were held in the Philippines, United Kingdom and the U.S. from 2016. The results of the hearings were contained in the report entitled National Inquiry on Climate Change issued on 6 May 2022 by the Commission.[3]
Commission's Inquiry Jurisdiction
The issues raised by the Petition appeared to be beyond the Commission's mandate to inquire upon under the Philippine Constitution and jurisprudence. However, the "Commission noted the acceptance under customary international law of the interrelatedness, interdependence, and indivisibility of human rights and, therefore, took the view that it may investigate the whole gamut of human rights allegedly impacted in the Petition."
Additionally, the Commission "noted the allegation that climate change adversely impacts the right to life, classified as a civil and political right under the International Covenant on Civil and Political Rights (ICCPR),[4] to which the Philippines is a party" and a right that falls within the Commission's mandate to investigate.
Below are some of the recommendations from the National Inquiry on Climate Change Report on actions needed to address the climate change issue in relation to human rights.
The climate crisis calls not just for an evaluation of State obligations on human rights, but a more significant examination and understanding of the human rights responsibilities of businesses.
NHRIs "play a crucial role in promoting and monitoring the effective implementation of international human rights standards at the national level"[5] and bridging stakeholders to "promote transparent, participatory and inclusive national processes of implementation and monitoring."[6] In the face of one of the greatest human rights challenges of our time, the Commission notes that NHRIs around the world are rising to the challenge and have increased engagements aimed at protecting climate-affected rights.[7]
In October 2015, the Global Alliance of National Human Rights Institutions (GAHNRI) adopted the Mérida Declaration, encouraging all NHRIs to "influence the national process of implementation and accountability to ensure human rights are integrated in the process of tailoring and tracking goals, targets and indicators"[8] of the 2030 Agenda for Sustainable Development. It highlighted the role of NHRIs to "promote remedies for all human rights violations and ... use their protection powers to address serious human rights concern linked to the implementation"[9] of development goals, including the realization of Sustainable Development Goal (SDG) No. 13 on climate action. The declaration also encouraged cooperation between NHRIs and private actors, reaffirming the role businesses can play in fulfilling the SDGs, and highlighting the need to align implementation with the UNGP [United Nations Guiding Principles on Business and Human Rights: Implementing the United Nations 'Protect, Respect and Remedy' Framework], and other international human rights standards.[10]
A month later, in November 2015, the Commonwealth Forum of National Human Rights Institutions adopted the St. Julian's Declaration on Climate Justice,[11] the first collaborative declaration of commitments signed by NHRIs, acknowledging and affirming their role in climate action.
More recently, during its Annual Meeting in December 2020, GANHRI adopted an outcome statement on the role of NHRIs in combating the climate crisis.[12] Recognizing that a human rights-based approach leads to more sustainable and effective climate action and policies, it called on all States to ratify and implement international and regional human rights instruments. Likewise, it called for the implementation of the provisions of the Paris Agreement, to promote human-rights based and people-centered climate action.[13] Also noteworthy in the statement is the recognition of the need for climate justice, which it defined "as addressing the climate crisis with a human rights-based approach whilst also making progress towards a just transition to a zero-carbon economy."[14]
Guided by these declarations and its specific learnings from the Inquiry, the Commission recommends and encourages its fellow NHRIs to:
Many individuals and organizations have now resorted to initiating actions before State-based judicial mechanisms to compel climate actions[15] and influence the development of laws and policies in both the domestic and international spheres. Litigation has been used to compel governments to provide more ambitious emissions targets,[16] establish the right to a healthful ecology for future generations,[17] or delineate the role of States with regard to transboundary environmental harms.[18]
Similarly, the progressive interpretation of laws by courts enhances regulation and addresses gaps in law where legislation may be vague or when current legislation is not up to date with developments in science.[19] In the case of Massachusetts v. EPA[20] for instance, the court held that the U.S. Environmental Protection Agency under its statute had the power to regulate GHGs [Greenhouse Gases], even though the statute did not specifically contemplate emissions regulation.
Courts must also interpret the law in conformity with international obligations and act as enforcement tools of States' international obligations - including those relating to climate change.[21] The coupling of international obligations with domestic regulation is not new. The courts in Urgenda v. Netherlands and Leghari v. Pakistan established their States' commitments under international conventions as part of their domestic obligations to their citizens. In Pro Public v. Godavari Marble Industries Pvt. Ltd.,[22] the court established that mining in a protected area is inconsistent with the principles found in international environmental protection and the Nepal Constitution.
The judiciary may also grant remedies not expressly provided by laws. "[T]he imprimatur of the courts confers considerable legitimacy on the operation of the administrative state[;] [...] courts have considerable latitude to develop law on their own."[23] A review of government acts has been accepted by courts to compel public agencies and offices to act and revise policies.[24] Civic organizations and individuals have used the threat of judicial review to compel governments into climate action.[25]
Judiciaries worldwide have also provided remedies that protect the environment and the people affected by environmental degradation. Examples of these are the Tutela[26] writs, found in Latin American countries and the Writ of Kalikasan[27] in the Philippines. These special writs have been consistently used by their respective courts to protect the environment.[28] Regional courts have also promoted remedies by issuing Advisory Opinions to help clarify the duties and rights relative to the environment and transboundary harm.[29]
Justice Brian Preston asserts that "[I]n the climate change context, courts have moved beyond their primary function of resolving disputes between private individuals and are now being used by public interest litigants as vehicles for achieving social change."[30] The Commission encourages all courts to embrace their power to influence and inspire government action. However, caution must be exercised to avoid "overly aggressive judicial review [that] has the potential to engender administrative ossification--agency paralysis--among other phenomena."[31] Thus, without favoring any particular party or going beyond their authority, courts should strive to inform, determine, explain and uphold, through their decisions, the rights and obligations of parties concerning particular climate laws, policies and issues. In dismissing claims, courts should clarify the factual and legal bases that were found wanting or insufficient to provide guidance not only to the parties but also to future actions. It should be emphasized that even when courts do not rule in favor of the claimants, they still contribute to meaningful climate response through their elucidation of the law and the rights and obligations of the parties. Judicial contribution to the development of the law and jurisprudence on various climate issues is indispensable to the success of the global climate action.
In the determination of claims and liabilities, courts may take judicial notice of the findings of NHRIs or other similar bodies.
Legal Profession
Justice Brian Preston[32] explains the role that lawyers play in climate change:
Recognising that addressing climate change depends on responses on a small scale, and that any legal action which involves climate change issues will impact on climate change policy, gives rise to a responsibility on lawyers to be aware of climate change issues in daily legal practice. It calls for a climate conscious approach rather than a climate blind approach. A climate blind approach is where the outcome of the legal problem or dispute will have some impact on climate change issues, but legal advice is given or the dispute is litigated or resolved without any attention to climate change issues. A climate conscious approach requires an active awareness of the reality of climate change and how it interacts with daily legal problems. A climate conscious approach demands, first, actively identifying the intersections between the issues of the legal problem or dispute and climate change issues and, secondly, giving advice and litigating or resolving the legal problem or dispute in ways that meaningfully address the climate change issues.[33]
The Commission shares Preston's view and that of the International Bar Association (IBA) that the global response to climate change entails, if not inevitably requires, a host of legal proceedings if any success is to be gained. Lawyers around the world will be called upon to represent the conflicting rights and interests of States, corporations, communities and individuals impacted by the climate crisis. Thus, "the legal profession must be prepared to play a leading role in maintaining and strengthening the rule of law and supporting responsible, enlightened governance in an era marked by a climate crisis."[34]
In whatever side or capacity lawyers may find themselves in these proceedings, the Commission appeals to them to work towards the development of laws and legal systems that will justly protect and uphold the common interest of humankind. To this end, the Commission calls on lawyers to generously lend their expertise towards improving or creating a legal framework for climate accountability in their localities, which may inform and ultimately become one of the bases for the development of a global legal framework for addressing the challenges posed by climate change.
Note: The author appreciates the help in preparing the article of former CHRP Commissioner Roberto Cadiz who headed the Inquiry Panel.
Jefferson R. Plantilla is a researcher at HURIGHTS OSAKA.
For further information, you may contact: Commission on Human Rights of the Philippines (CHRP), SAAC Building, UP Complex, Commonwealth Avenue, Diliman, Quezon City 1101 Philippines, ph (632) 8294-8704; e-mail: comsec.chr@gmail.com; https://chr.gov.ph/ or the Climate Action and Human Rights Institute (CAHRI) at cahri.ph@gmail.com, now headed by former CHRP Commissioner Roberto Cadiz who chaired the Inquiry Panel.
[1] The Petition was filed by Greenpeace Southeast Asia and individuals from across the Philippines in 2015.
[2] The Commission constituted an Inquiry Panel composed of Commissioner Roberto Eugenio T. Cadiz, as Chair, former CHRP Chairperson Jose Luis Martin Gascon, Commissioner Karen S. Gomez - Dumpit, Commissioner Gwendolyn Ll. Pimentel-Gana, and then CHRP Chairperson Leah C. Tanodra - Armamento, as members. Dr. Peter William Walpole, S.J. joined the panel as its independent expert.
[3] Full report available at https://chr.gov.ph/wp-content/uploads/2022/12/CHRP_National-Inquiry-on-Climate-Change-Report.pdf.
[4] United Nations International Covenant on Civil and Political Rights, art. 6, 1996, 999 U.N.T.S. 171 [ICCPR]. See also United Nations Human Rights Committee (UNHRC), in General Comment No. 36 on the right to life, H.R. Comm., General Comment No. 36 (2018) on Article 6 of the International Covenant on Civil and Political Rights, on the Right to Life, UN Doc. CCPR/C/GC/36 (Oct. 30, 2018).
[5] United Nations Human Rights Office of the High Commissioner, UN Human Rights and NHRIs, www.ohchr.org/EN/Countries/NHRI/Pages/NHRIMain.aspx.
[6] The Mérida Declaration, The Role of National Human Rights Institutions in Implementing the 2030 Agenda for Sustainable Development. Hereinafter referred to as Mérida Declaration, par. 15.
[7] Nathaniel Eisen and Nina Eschke, Climate Change and Human Rights: The Contributions of National Human Rights Institutions : a Handbook, German Institute for Human Rights, 2020.
[8] Mérida Declaration, op. cit.
[9] Ibid.
[10] Mérida Declaration, par. 11.
[11] Commonwealth Forum of National Human Rights Institutions, St. Julian's Declaration on Climate Justice, November 2015, p. 5.
[12] Global Alliance of National Human Rights Institutions, "GANHRI Statement adopted at the GANHRI Annual Conference on Climate Change: The Role of National Human Rights Institutions" (adopted on 4 December 2020). Available at https://ganhri.org/wp-content/uploads/2021/02/EN_AC_Statement_for_consultation.pdf.
[13] GANHRI Statement, par. 2.
[14] GANHRI Statement, par. 3.
[15] Nachmany, M.; Fankhauser, S.; Setzer, J.; & Averchenkova, A. (2017) Global trends in climate change legislation and litigation. Grantham Research Institute on Climate Change and the Environment.
[16] Netherlands Hague District Court [2015] HAZA C/09/00456689. Affirmed by Hague Court of Appeals and Supreme Court of the Netherlands in 2018 and 2020, respectively.
[17] Philippine Supreme Court [1993] G.R. No. 101083 and Juliana v. United States, 217 F. Supp.3d 1224 (D. Or. 2016) (U.S.).
[18] Inter-American Court of Human Rights [2017] OC-23/17
[19] Setzer, J. & Bangalore, J. (2017). "Regulating climate change in the courts," in Averchenkova, A., Fankhauser, S., Nachmany, M. (eds.), Trends in Climate Change Legislation, London: Edward Elgar, 2017.
[20] United States Supreme Court [2007] 549 U.S. 497 (2007)
[21] Colombo, Esmeralda. (2017) Enforcing International Climate Change Law in Domestic Courts: A New Trend of Cases for Boosting Principle 10 of the Rio Declaration?," UCLA Journal of Environmental Law and Policy, 35(1).
[22] Supreme Court of Nepal [2015] 068-WO-0082.
[23] Markell, D. & Ruhl, J.B. (2012), "An Empirical Assessment of Climate Change In The Courts: A New Jurisprudence Or Business As Usual?," 64 FLA. L. REV. 15, 21, p. 20.
[24] Urgenda v. Netherlands: Hermes, John (2019). "Dutch Government Plans CO2 Emissions Levy for Industrial Firms," Bloomberg Businessweek. Accessed 6 January 2021; Reuters (2019) "Dutch to close Amsterdam coal-fired power plant four years early - RTL".
[25] Averchenkova, A.; Fankhauser, S.; & Finnegan, J. (2020), "The impact of strategic climate legislation: evidence from expert interviews on the UK Climate Change Act," Climate Policy, Volume 21, issue 2, 2021.
[26] 1991 Constitution of Columbia (Revised 2015).
[27] 2010 Rules of Procedure for Environmental Cases. A.M. No. 09-6-8-SC .
[28] Corte Constitutional de Colombia [2016] T-622 of 2016; Supreme Court of the Philippines [2019] Abogado et. al v. Department of Environment and Natural Resources.
[29] Inter-American Court of Human Rights [2017] Advisory Opinion Concerning the Interpretation of Article 1(1), 4(1) and 5(1) of the American Convention on Human Rights.
[30] Preston, B. (2014), "Characteristics of Successful Environmental Courts and Tribunals," Journal of Environmental Law, 365, 387, 388, respectively p. 31.
[31] Markell & Ruhl 2012 (citing Thomas O. McGarity, "Some Thoughts on 'Deossifying' the Rulemaking Process," 41 Duke Law Journal, 1385, 1386-87 (1992); Seidenfeld, M. (2009) "Why Agencies Act: A Reassessment of the Ossification Critique of Judicial Review," Ohio State Law Journal, Volume 70, Number 2, 2009, 251, 254; & Yackee, J.W. & Yackee, S.W., "Testing the Ossification Thesis: An Empirical Examination of Federal Regulatory Volume and Speed, 1950-1990," The Washington Law Review, Volume 80, 14 July 2012 .
[32] Chief Judge of the Land and Environment Court of New South Wales.
[33] Preston, B., Implementing a climate conscious approach in daily legal practice, lecture in a public seminar at the Faculty of Laws, University of College London, London, on 11 February 2020.
[34] International Bar Association, Climate Crisis Statement, 5 May 2020. Accessed at https://www.ibanet.org/medias/822C1967-F851-4819-8200-2FE298164922.pdf?context=bWFzdGVyfGFzc2V0c3w3ODQ4MDZ8YXBwbGljYXRpb24vcGRmfGhmMC9oN2MvODc5NjMzNjIyNjMzNC84MjJDMTk2Ny1GODUxLTQ4MTktODIwMC0yRkUyOTgxNjQ5MjIucGRmfDQzYTY0MjUxMDE0OTVjZTE4YjBhZmU1NzY0YTRkOTM3YjljNjg0NjdiY2QxNDY0MzBkYzJjOTNiOGUzNmVlMWE.