Philippines Commission on Human Rights finds that the world’s largest emitters of greenhouse gas emissions engaged in “wilful obfuscation” of climate science and breached human rights

Commission on Human Rights of the Philippines, National Inquiry on Climate Change (2022)

Summary

On 6 May 2022, the Philippines Commission on Human Rights (Commission) released its findings from its inquiry into the world’s largest producers of crude oil, natural gas, coal and cement (Carbon Majors). The Commission released a report which established that corporations can be held responsible for the human rights violations that result from climate change.

Petition

On 22 September 2014, a group of Filipino citizens and other Non-Government Organisations (including Greenpeace) filed a petition asking the Commission to conduct an inquiry on the impact of climate change on the human rights of the Filipino people and role played by the Carbon Majors. The petition claimed that:

  • climate change was negatively impacting the human rights of Filipino people; and

  • the largest oil producers globally were contributing to climate change (and knowingly so).

The petition followed a series of typhoons, including typhoon Haiyan, which caused deaths and widespread damage in the Philippines. More recently, the pattern of extreme weather events such as tropical cyclones has intensified in the Philippines. Based on data over a 20-year period, the Philippines is the fifth most climate change-affected country in the Global Climate Risk Index, despite only accounting for 0.3% of global emissions. On 10 December 2015, the Commission confirmed that it would conduct an inquiry into the role of the Carbon Majors in breaching the human rights of Filipino people (Inquiry).

Jurisdiction

Several of the Carbon Majors alleged that the Commission had no jurisdiction to conduct hearings involving allegations of liability. They contended that the Commission was a human rights institution, rather than a court of law. They argued that even if the Commission did have jurisdiction to conduct these hearings, it did not have jurisdiction to consider the subject matter of climate change as this did not fall within the realm of civil and political rights.

In response, the Commission explained that human rights are “inter-related, inter-dependent, and indivisible; that one cannot consider civil and political rights separately from economic, social, and cultural rights.” The Commission cited the United Nations (UN) Human Rights Committee in General Comment No. 36 on the right to life, which states that “environmental degradation, climate change and unsuitable development constitute some of the most pressing and serious threats to the ability of present and future generation to enjoy the right of life”.

Some Carbon Majors questioned the power of the Commission to investigate their activities as they did not operate within the Philippines.  The Commission rejected this argument, finding that the corporations’ operations were negatively impacting the rights and lives of people within the Philippines. Article XIII of the Philippine Constitution mandated the Commission investigate and inquire into the allegations of human rights violations suffered by Filipino people.

Process

Phase 1 of the Inquiry involved the Commission accepting amici briefs, position papers and research from science and legal experts, professional organisations and advocates around the world. In addition, the Commission took administrative notice of the reports of the Intergovernmental Panel on Climate Change (IPCC), the UN Framework Convention on Climate Change and the UN Environment Programme. Phase 1 also involved the Commission conducting interviews and round-table discussions.

Phase 2 of the Inquiry involved public hearings. All hearings were live streamed over the internet with the goal of being transparent and public. The Inquiry Panel focused its public hearings on the substantive aspects of the case, while adhering to general principles of due process under the provisions of its Omnibus Rules of Procedure.

The Commission wanted the Inquiry to be global and dialogical, rather than adversarial. The Commission conducted the Inquiry upon the principle of persuasion, rather than compulsion. This was because while the Commission gave the parties notice of the hearings, it did not have the power to compel the parties to participate.

Key findings

Climate change is real and anthropogenic

The Commission considered that the reports of the IPCC provided “unequivocal evidence of global warming”. The main indicators were changes in the atmosphere, oceans (including ocean warming and acidification), cryosphere loss (which refers to glaciers, ice sheets, icebergs and similar frozen parts of the Earth melting), as well as the frequency of extreme weather and climate events.

Climate change has been induced and accelerated by human activity since around 1750. In 2021-22, the IPCC released the Sixth Assessment Reports, which explained that climate change is anthropogenic in origin. The IPCC found that the warming of the atmosphere and oceans, as well as the other indicators of climate change outlined above, can all be traced back to the influence of human activities.

Climate change is a human rights issue

The Commission found that climate change adversely impacts many, if not all, human rights. For example:

  • Climate change impacts the right to life with dignity through the degradation of the environment, deprivation of resources, prevalence of life-threating diseases and widespread hunger and malnutrition.

  • Individual human rights impacted by climate change include the rights to food, water, life, sanitation and health.

  • Collective rights impacted by climate change include the rights to food security, development and sustained economic growth, self-determination, preservation of culture, equality and non-discrimination. Climate change also impacts the rights of future generations.

  • Climate change influences vulnerable groups of people, including Indigenous peoples, women, children, the elderly and people with disabilities.

States have a duty to protect human rights

While States cannot act in violation of the principle of non-intervention as enshrined in the UN Charter, exceptional circumstances may justify interference with the internal affairs of other States. This includes upholding human rights obligations under treaties and customary international law. The Paris Agreement, adopted on 4 November 2016, was the first time the international community reached a binding agreement to reduce emissions and combat climate change. This was a relevant factor that the Commission considered in finding that States have a positive duty to protect human rights, which includes climate change.

Carbon Majors are responsible for climate change

The Commission made the following findings in relation to the Carbon Majors:

  • The Carbon Majors’ activities contributed to 21.4% of global emission from fossil fuel combustion and cement production. The Carbon Majors had early awareness, notice or knowledge of their products’ adverse impacts on the environment and climate system in 1965 at the latest (but this could have been as early as 1930).

  • The Carbon Majors, directly by themselves or indirectly through others, singly or through concerted action, engaged in wilful obfuscation of climate science in concealing the damage that their products caused to the environment. As a result, the ability of the public to make informed decisions about their products has been prejudiced.

  • Shareholders can hold fossil-based companies to account for continued investments in oil explorations for largely speculative purposes.

  • Any acts to obfuscate climate science and delay, derail or obstruct the transition to clean energy may be a basis for liability. Fossil fuel enterprises continue to fund the electoral campaigns of politicians, with the intention of slowing down the global movement towards clean, renewable energy.

Due diligence and remediation

The Commission found that citizens may hold their governments accountable for a failure to both adapt and mitigate climate change. The Commission considered that “concrete metrics” are required to hold governments accountable and that it is sufficient to establish the absence of meaningful action.

The Commission also held that the Carbon Majors have corporate responsibilities and may be compelled to undertake human rights due diligence processes. Business enterprises doing business in the Philippines (including their value chains) can be held accountable for failures to remediate human rights abuses arising from their business operations.

Recommendations 

While the Commission does not have enforcement powers and cannot impose any kind of punitive judgement, it made a number of recommendations to the Philippines Government as well as Governments around the world, the Carbon Majors and other corporations, financial institutions and investors, the UN and other international bodies, national human rights institutions, courts, non-government organisations and civil society organisations, the legal profession and global citizens.

The recommendations to the Carbon Majors included:

  • Publicly disclosing due diligence and climate and human rights impact assessment results, and the corresponding measures taken in response.

  • Desisting from all activities that undermine the findings of climate science.

  • Ceasing further exploration of new oil fields, keeping fossil fuel reserves in the ground, and leading the transition to clean energy.

  • Contributing to a green climate fund for the implementation of mitigation and adaptation measures.

  • Continually engaging with experts, civil society organisations and other stakeholders to assess and improve their corporate climate responses.

The recommendations to States and Governments included:

  • Acknowledging that countries that have reaped the benefits of high industrialisation (without regard for large greenhouse gas emissions and their effects on the environment) bear greater responsibility in providing solutions to the problems they have created.

  • Discouraging dependence on fossil fuels (for example, by eliminating tax breaks and by requiring the private sector to have decarbonisation and net zero plans).

  • Cooperating and creating a legally binding instrument to strengthen the implementation of the UN Guiding Principles on Business and Human Rights. States should also provide redress mechanisms for victims of human rights harms caused by corporations.

  • Supporting and providing adequate legal protection to environmental defenders and climate activists.

The recommendations to the Philippines Government included:

  • Committing to the implementation of the United Nations Guiding Principles on Business and Human Rights and formulate a National Action Plan on Human Rights.

  • Amending its climate change and disaster risk reduction legislation, as well as other related regulations, to create a singular climate code.

  • Designing and implementing rules of evidence for attributing climate change impacts and assessing damages.

Commentary

The Inquiry is the first time a government agency has considered the responsibility of corporations in contributing to climate change and for resulting human rights breaches. Framing climate change as a human rights issue, rather than a civil or political issue, is a relatively new concept. The Inquiry may pave the way for other countries to view climate change in this way.

The Commission’s finding that it had jurisdiction means that the Carbon Majors can be held liable anywhere in the world for breaches of human rights in contributing to climate change. This reflects the fact that climate change is unique in its impacts, which are not confined to State borders.

The Inquiry also demonstrates the growing movement to promote climate justice through international human rights law. Formal litigation is increasingly being used against the Carbon Majors and other large-scale polluters in response to the climate crisis.

The Commission’s full report is available here.

 

Olivia Freeman is a Solicitor at King & Wood Mallesons.

 

Guest UserEnvironmental and Climate Justice