Climate Justice Through Human Rights: The Carbon Majors Inquiry

While climate change-related disasters are increasing at an alarming rate, exposing people to suffering and depriving them of the most fundamental human rights – such as the right to life, health, food security, water and sanitation –, concrete action to limit such devastating effects is progressing at a different pace. Instead of addressing the main cause of climate change by curbing anthropogenic greenhouse gas emissions from the production and consumption of fossil fuels, the Carbon Majors – the top producers of crude oil, natural gas, coal, and cement in the world – continue to be largely unregulated in terms of the carbon emissions of their activities and their human rights responsibilities under international law.

In the Philippines, a landmark inquiry recently found legal grounds to hold corporations accountable. The multi-year inquiry started in 2015 with a petition of a group of Filipino citizens. On 6 May 2022, the Commission on Human Rights of the Philippines (CHRP) released its report on the human rights implications of climate change arising from the Carbon Majors’ activities. The report includes a series of findings on the harms of the Carbon Majors to the climate system, along with recommendations for strengthening the legal liability of fossil fuel producers and multiple stakeholders (governments, financial institutions, courts and NGOs, for example) for human rights violations. Right now, rather than being bound to respect human rights by legally binding obligations, corporations ‘just’ have a moral and social responsibility to do so. This is due to the predominance of soft law instruments in the field, such as the UN Guiding Principles on Business and Human Rights.

Even if the Commission is not invested with powers of enforcing its decision and thus providing compensation to victims, it has the mandate to investigate alleged human rights violations of the Filipino people and make recommendations in this regard.  The decision of the Commission revives hopes of holding fossil fuel producers responsible for human rights violations in international and domestic courts, while also sparking global dialogue on the issue.

Climate change has been called a vulnerability multiplier because it amplifies injustices and the suffering of already poor, marginalized and vulnerable segments of society – despite their very limited contribution to climate change. It is no coincidence that the petition to investigate the Carbon Majors’ responsibility for the human rights implications of climate change and ocean acidification came from the Philippines, which has borne the brunt of climate-related disasters and held the presidency of the Climate Vulnerable Forum at the time of the petition. Devastating typhoons have hit the country in recent years, posing imminent and serious threats to the basic human rights of the Filipino people. As a result, many have lost their livelihoods and been displaced.

Responses to climate injustices can be formulated in multiple ways, depending on the lens through which climate change is examined. The Carbon Majors inquiry approached climate justice from the perspective of human rights law. Human rights are a powerful tool to strengthen climate change law, policies and action, as emphasized in numerous UN Human Rights Council Resolutions and the preamble of the Paris Agreement. They are also at the core of the climate litigation strategy that has caught on across the globe. Nevertheless, framing climate change effects as human rights violations entails complex obstacles in terms of causality, attribution and jurisdiction, among others. The inquiry conducted by the CHRP has shown how these hurdles can be surmounted. By assessing to what extent the human rights responsibility of the Carbon Majors applies to the impact of climate change, the inquiry can potentially influence upcoming climate litigations and legislation at both EU and UN level.

According to the findings of the Commission, there are multiple grounds for the Carbon Majors’ liability for human rights violations due to adverse impacts of climate change, including:

• Decades-long awareness on the part of the fossil fuel industry of the harms to the environment and the climate system (page 100);
• Direct or indirect engagement of the Carbon Majors in willful obfuscation and obstruction to prevent meaningful climate action and prejudice the right of the public to make informed decisions (page 104);
• Responsibility of corporations to undertake human rights due diligence (page 110), which requires them “to identify, prevent, mitigate and account for how they address their adverse human rights impacts” (Principle 17 of the UN Guiding Principles) and provide remediation for human rights abuses arising from their business operations.

The investigation into human rights violations attributable to the Carbon Majors has found that states are not the only bearers of legal obligations when it comes to safeguarding human rights against environmental and climate harms. Although not expressly stipulated in the business and human rights regime, corporate actors’ obligation to respect and protect human rights extends to climate change impacts. It follows that these actors must be held liable when breaching human rights by engaging in activities that undermine climate action.

In addition, despite initial attempts by oil companies to dismiss the petition on the basis of allegations that the Philippines did not fall within the Commission’s territorial jurisdiction, the decision to forge ahead with investigating the corporations’ human rights violations shows that such investigations are legally justified as long as one of the principles of jurisdiction of international law applies, which enables the Commission to investigate and make legal decisions. This means that corporations may be held accountable for human rights breaches outside of the territory in which they operate.

At first glance, advancing climate justice through international human rights institutions might not be as successful as obtaining enforceable provisions or compensation through international or domestic courts. However, the Carbon Majors inquiry has undoubtedly aided the future advancement of international and human rights law relating to corporate responsibility for human rights violations associated with climate change. As underlined by the Chair of the Commission, human rights institutions need to “test boundaries and create new paths, to be bold and creative […], to promote soft laws into becoming hard laws.” Now we have to wait and see how high the bar of human rights protection will be lifted to address deepening climate injustices, and to what extent the results of this inquiry will be incorporated into laws and decision-making processes.