New forum for human rights views on Just Recovery

Launched in December 2020, Just Recovery from Covid-19  is a new blog forum for the international human rights community. One of the first posts is  “A New Social Contract” by Sharan Barrow, Secretary-General of the International Trade Union Confederation (ITUC). Barrow reviews the impacts of Covid-19 and calls for a new global social contract, based on principles outlined in the 2019 ILO Centenary Declaration for the Future of Work  – labour protections for all workers, universal social protections for all, a transformative agenda for women, and just transitions for climate and technology shifts.  Barrow reviews the current Just Recovery policy debate in Europe, and states: “At the heart of these measures sits the requirement for social dialogue to ensure trust in design and implementation.”

The Just Recovery blog series is hosted by The Asian Forum for Human Rights and Development (FORUM-ASIA), Business & Human Rights Resource Centre, and the International Corporate Accountability Roundtable (ICAR). It aims to open the door on the community of organizations and people seeking to promote human rights issues in business. For example, the CEO of the Institute for Human Rights and Business posted to the blog with “Building forward better: Thoughts on intergenerational justice “. (Other reports at the IHRB website include: Connecting the Climate Change and Business & Human Rights Agendas  (Dec 2020) and Just Transitions for All: Business, Human Rights, and Climate Action  (Nov. 2020). )

Another contributor to the Just Recovery blog is the CEO of Principles for Responsible Investment., with the post “Collaborating for a Just Recovery”  . PRI initiated the pioneering Blueprint for Responsible Investment  in 2017 and continues to work globally for transparency and environmental responsibility in the investment community.

How human rights approaches can aid climate activism and litigation

Climate change, justice and human rights is a collection of ten essays, released by Amnesty International Netherlands in August 2020 (published in English). It is a thoughtful and critical discussion of the opportunities and problems of taking a human rights lens to climate change. “The language, policies and (campaigning) strategies around climate change and human rights are still in development, leading to new insights, (re) definitions, and new challenges for human rights and environmental activists.” The opening essay, “Amnesty’s approach to climate change and human rights” discusses whether Amnesty should become involved in climate change, and if so, how.  It concludes “Simply framing the crisis as a human rights crisis will by itself make only a modest difference. However, with determination, sound strategy and humility we can use our strengths to support and be guided by those who are at the front line of the climate crisis, and who have been leading the struggle for climate justice for a long time.” Specifically, when options for tactics were presented at a People’s Summit in 2019, participants voted for: Changing public opinion (25%); Civil disobedience (19%); Litigation (17%); Divestment (14%); Mass demonstrations (9%); Consumer boycotts (9%); or  something else (7%). Not all of these are tactics commonly used by Amnesty International, but the report discusses how they determine to go forward.

Besides the considerations of Amnesty’s future direction and tactics, the essays look at the concept of climate justice, and finally, at specific policies areas, in chapters such as “Climate change and the human rights responsibilities of business enterprises” by  Sara Seck, Associate Professor, Schulich School of Law, Dalhousie University; “The use of human rights arguments in climate change litigation and its limitations” by Annalisa Savaresi, one of two Executive Directors of Greenpeace Netherlands; “The climate crisis and new justice movements: supporting a new generation of climate activists” by Anna Schoemakers, Senior Lecturer in Environmental Law at Stirling University, UK; and “ Human rights and intergenerational climate justice “ by  Bridget Lewis, Senior Lecturer at the Queensland University of Technology in Brisbane, Australia.   

  

Philippines Human Rights Commission delivers landmark decision, holding the Carbon Majors accountable for climate damages – Updated

The Human Rights Commission of the Philippines has concluded its three-year investigation of a complaint led by Greenpeace South-East Asia , and has found that the collective contribution to global heating by 47 coal, cement, and oil and gas companies has violated Filipinos’ basic human rights to life, water, food, sanitation, adequate housing and self-determination. Although the full decision is not yet available – but promised by the end of 2019 – the announcement made by one of the Commissioners at the COP25 meetings  stated that it would be up to individual countries to pass strong legislation and establish legal liability in their own courts, but that “there was clear scope under existing civil law in the Philippines to take action.”

The  Director of Greenpeace Philippines is quoted in the Greenpeace press release:

“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. However, this is only the beginning. We believe the findings provide 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.”

Greenpeace maintains an archive of documents related to this long-running investigation, including corporate responses and expert opinions.  Climate Liability News has published a number of articles, including “Carbon Majors Can Be Held Liable for Human Rights Violations, Philippines Commission Rules” and  “Philippines Climate Case Could Find Fossil Fuel Companies Violate Human Rights” ( 2017), which  provides more background to the case.

Update:  On December 18, The Tyee published “Oilsands Firms ‘Morally Responsible’ for Deaths and Destruction from Climate Disasters”, an interview by Geoff Demicki with Greenpeace’s Naderev Yeb Saño , which “explains what a Philippines human rights investigation means for the fossil fuel industry in Canada.”

Rights-in-a-Changing-ClimateRelated: An authoritative chronicling of  the human rights dimension in UNFCCC decisions and the Paris Agreement appears in  Rights in a Changing Climate by the Centre for International Environmental Law , published on December 5. It includes examples of Just Transition and decent work. The CIEL also operates a Working Group on Climate Rights, with a dedicated website here.

Updates on climate litigation:

“Fossil Fuels on Trial: Where the Major Climate Change Lawsuits Stand Today”  was published by Inside Climate News on November 29, providing a good sum-up of the year, but too early to reflect the landmark Philippines decision, nor the December 10 decision in the suit by the New York Attorney General against  Exxon.  The surprising victory for Exxon is described in  “Judge Clears Exxon in Investor Fraud Case Over Climate Risk Disclosure”  in Inside Climate News, as well as in a New York Times article.

Business responsibilities for climate change: U.S. Roundtable nods, U.N. sets a high bar

The U.S. Business Roundtable generated headlines and surprised reaction with the August 19th release of a new Statement of Purpose,  signed by 181 CEO’s of high-profile companies including Amazon, Walmart, Bank of America, Lockheed Martin, Morgan Stanley, UPS, and others. That statement redefines their shared, overarching corporate goal from “delivering value for shareholders” to  promoting “An Economy That Serves All Americans” – including by: “supporting the communities in which we work. We respect the people in our communities and protect the environment by embracing sustainable practices across our businesses.” …“Investing in our employees. This starts with compensating them fairly and providing important benefits. It also includes supporting them through training and education that help develop new skills for a rapidly changing world. We foster diversity and inclusion, dignity and respect.”

The full Business Roundtable Statement on the Purpose of a Corporation, with signatories, is here ;  case studies of member corporations’ social responsibility initiatives are outlined in Building Communities, Meeting Challenges .

A higher bar for business

In contrast to the Business Roundtable statement, scant attention was paid to an international call for human rights and climate justice, released in July. The Safe Climate Report  provides a guide to the obligations of States and the responsibilities of businesses under international agreements and law, regarding the rights to life, health, food, water and sanitation, rights of the child, right to a healthy environment, and rights of vulnerable populations.

The Safe Climate Report, as well as the June 2019 U.N. Report  on extreme poverty and climate change by Philip Alston, are the subject of a September 4 article in The Conversation Canadian edition, “Climate change, poverty and human rights: an emergency without precedent” . The authors state that “The Alston report suggests that the only way to address the human rights dimensions of climate crisis is for states to effectively regulate businesses and for those harmed by climate change to successfully sue responsible companies in court. ….  “the Safe Climate report goes further…”

Specifically, the Safe Climate Report states:

“Businesses must adopt human rights policies, conduct human rights due diligence, remedy human rights violations for which they are directly responsible, and work to influence other actors to respect human rights where relationships of leverage exist. As a first step, corporations should comply with the Guiding Principles on Business and Human Rights as they pertain to human rights and climate change…. The five main responsibilities of businesses specifically related to climate change are to reduce greenhouse gas emissions from their own activities and their subsidiaries; reduce greenhouse gas emissions from their products and services; minimize greenhouse gas emissions from their suppliers; publicly disclose their emissions, climate vulnerability and the risk of stranded assets; and ensure that people affected by business-related human rights violations have access to effective remedies.90 In addition, businesses should support, rather than oppose, public policies intended to effectively address climate change.”  (page 19/20).

Legal obligations of States:

The discussion in this report is also highly relevant to any litigation against states or companies regarding climate change, as well as for the rights of Indigenous peoples and children.  Boyd concludes:

“A failure to fulfill international climate change commitments is a prima facie violation of the State’s obligations to protect the human rights of its citizens. As global average temperatures rise, even more people’s rights will be violated, and the spectre of catastrophic runaway climate chaos increases. There is an immense gap between what is needed to seriously tackle the global climate emergency and what is being done.

A dramatic change of direction is needed. To comply with their human rights obligations, developed States and other large emitters must reduce their emissions at a rate consistent with their international commitments. To meet the Paris target of limiting warming to 1.5°C, States must submit ambitious nationally determined contributions by 2020 that will put the world on track to reducing greenhouse gas emissions by at least 45 per cent by 2030 (as calculated by the Intergovernmental Panel on Climate Change). All States should prepare rights-based deep decarbonization plans intended to achieve net zero carbon emissions by 2050, in accordance with article 4, paragraph 19, of the Paris Agreement. Four main categories of actions must be taken: addressing society’s addiction to fossil fuels; accelerating other mitigation actions; protecting vulnerable people from climate impacts; and providing unprecedented levels of financial support to least developed countries and small island developing States.”

The Safe Climate Report  (formally titled The Report of the Special Rapporteur on the issue of human rights obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment)  was submitted to the U.N. General Assembly,  written by Canadian human rights scholar and U.N. Special Rapporteur David R. Boyd, whose 2012 book, The Environmental Rights Revolution: A Global Study of Constitutions, Human Rights and the Environment,  stands as a landmark study in environmental law.  The Special Rapporteur’s Report was informed by a consultation period in 2019 in which States and organizations were invited to participate – the few which did are posted here . (Neither  Canada nor the U.S. were among the countries which submitted).  Two noteworthy organizational submissions available are from Canada’s Ecojustice, and Our Children’s Trust (U.S.)  on the issue of intergenerational responsibility and youth. A separate report by Special Rapporteur John Knox discussed The Children’s Rights and the Environment in 2018, and it may be significant the  concluding sentence of the Safe Climate Report uses Greta Thunberg’s famous words,  “I want you to act as if our house is on fire. Because it is.”

Climate apartheid and chaos – U.N. official warns that only the rich will escape poverty, disease and displacement

mumbai floods 2019It appears that Greta Thunberg is not the only person willing to speak truth to power. Philip Alston, Special Rapporteur on Extreme Poverty and Human Rights for the United Nations, officially tabled a report at the U.N. on June 28.  Although the title, Climate Change and Poverty, sounds like another bureaucratic exercise, his language is urgent and blunt.

The full report is available from this link at the U.N. press release.   Some excerpts :

 

“Climate change threatens to undo the last 50 years of progress in development, global health, and poverty reduction. …It could push more than 120 million more people into poverty by 2030 and will have the most severe impact in poor countries, regions, and the places poor people live and work….

We risk a ‘climate apartheid’ scenario where the wealthy pay to escape overheating, hunger, and conflict while the rest of the world is left to suffer… The risk of community discontent, of growing inequality, and of even greater levels of deprivation among some groups, will likely stimulate nationalist, xenophobic, racist and other responses. Maintaining a balanced approach to civil and political rights will be extremely complex…

…Staying the course will be disastrous for the global economy and pull vast numbers into poverty. Addressing climate change will require a fundamental shift in the global economy, decoupling improvements in economic well-being from fossil fuel emissions. It is imperative this is done in a way that provides necessary support, protects workers, and creates decent work.

Governments, and too many in the human rights community, have failed to seriously address climate change for decades. Somber speeches by government officials have not led to meaningful action and too many countries continue taking short-sighted steps in the wrong direction…..Although climate change has been on the human rights agenda for well over a decade, it remains a marginal concern for most actors. Yet it represents an emergency without precedent and requires bold and creative thinking from the human rights community, and a radically more robust, detailed, and coordinated approach.

… incremental managerialism and proceduralism ..are entirely disproportionate to the urgency and magnitude of the threat. Ticking boxes will not save humanity or the planet from impending disaster.”

Summaries from the media appear in: “To Prevent ‘Climate Apartheid Scenario’ Where Rich Escape and Poor Suffer, UN Report Issues Urgent Call for Global Economic Justice” in Common Dreams (June 25) and  “‘Climate apartheid’: UN expert says human rights may not survive” in The Guardian .

Global Renewable Energy industry lacks human rights and labour rights protections

Renewable energy BHRRC cover part 2London-based Business and Human Rights Resource Centre (BHRRC) released a new report on September 5th : Renewable Energy Risking Rights & Returns: An analysis of solar, bioenergy & geothermal companies’ human rights commitments  . The report analyses 59 companies’ human rights policies and practices on five key areas: human rights commitment, community consultations, grievance mechanisms, labour rights and supply chain monitoring. It concludes that  “The current level of commitment by the majority of renewable energy companies is insufficient to prevent, address and mitigate human rights harms, especially as the sector rapidly expands.”

Concerning labour rights, only 36% of renewable energy companies were found to have policies committing them to core labour rights such as collective bargaining and freedom of association, 42% commit to  the prohibition of child labour and 41% to prohibition of  forced labour and modern slavery.  An aspect with resonance for Canadians, in light of the recent federal Court of Appeal decision against the Trans Mountain Pipeline, the report found that “less than 30% (17 out of 59) of renewable energy companies have a stated commitment to consultation with communities affected by their projects. Only 8 companies reference indigenous peoples’ rights and 4 companies have a commitment to free, prior and informed consent of indigenous communities.”  Overall,  47% of companies do not have basic human rights commitments or processes in place, and only 5 companies met a set of basic criteria on human rights, community consultation and access to remedy. These findings are consistent with a previous BHRRC  survey, reported in 2016.

Based  on its extensive research of the mining industry, BHRRC also states that “failure to respect human rights can result in project delays, legal procedures and costs for renewable energy companies, underlying the urgency to strengthen human rights due diligence.”   It calls for investors to step up their engagement in renewable energy companies to ensure better respect for human rights.

Read the press release here  for a summary of the report, and explore ongoing monitoring of human rights in the renewable energy sector here.

U.N. Working Group makes recommendations to protect human rights, labour rights in Canada

The United Nations Office of the High Commissioner for Human Rights released a  Statement at the end of visit to Canada by the United Nations Working Group on Business and Human Rights on June 1. This is a preliminary document – the official mission report will be presented to the 38th session of the Human Rights Council in June 2018, and should be worth watching for.  The preliminary Statement provides a summary of the results of fact-finding meetings with government officials, business organizations related to Canada’s mining and oil and gas industries, and Indigenous people. Most importantly, it makes a number of recommendations regarding human rights, labour rights, environmental and social impact consultation, and the right to consult for Indigenous people.

Some Highlights:

“Part of the backdrop to our visit were visible protests by indigenous communities to several large-scale development projects, such as the proposed expansion of the Trans Mountain oil pipeline, the construction a large-scale hydroelectric dam (Site C Dam), and continued expansion of development projects of extractives industries. Several of these cases have also been repeatedly raised by UN human rights human rights mechanisms, such as the situation of the Lubicon Cree Nation, whose territories are affected by extensive oil sands extraction. In several indigenous territories, extensive mining and oil and gas extraction are accompanied by significant adverse environmental impacts affecting the right to health.”

Regarding the established “duty to consult” with Indigenous people regarding mining projects, the Working Group encourages the Canadian government to ratify the ILO Convention No. 169 and for provincial and the federal government to promote more inclusive consultation regarding development projects.

The Working Group also urges the federal government to “follow up” on the April 2017 recommendations by the Expert Panel regarding Environmental Assessment in Building Common Ground: A New Vision for Impact Assessment in Canada  “to include indigenous peoples in decision-making at all stages through a collaborative process that is developed in partnership with impacted indigenous communities.”

Regarding the dam breach and tailings spill at the Mount Polley mine, the Working Group states: “We encourage the British Columbia government to complete expeditiously the impact study, continue to monitor closely the short-term and long-terms impacts of the tailings discharge, and communicate more widely their findings and proposed actions. Moreover, the provincial government should consult more broadly with indigenous communities who may have concerns about the breach and its impact on their lives. We also recommend the British Columbia government to consider establishing an independent body to assume compliance and monitoring of mining regulations, as recommended in the Auditor General’s report”.

Regarding the Westray Law, the Working Group states: “We heard concerns that the Westray law is not being properly implemented and enforced. We heard that there was a lack of coordination between key government parties, to secure sites of industrial accidents, for further investigation and inspection. We note that the Government of Alberta recently signed a new memorandum of understanding with ten police forces and Alberta Justice,  that defines protocols for notification, investigation and communication between departments when there is a serious workplace incident. Other provinces should follow Alberta’s lead”.

Regarding the need to protect the right to peaceful protest: “During our visit, we were told of the criminalization of peaceful protests and the use of security personnel and police to break up and arrest activists who were exercising their democratic right to protest against extractive projects both within and outside Canada. The government should work all relevant stakeholders to ensure more space for peaceful dissent and protest at home and abroad.”  And also: referring to Ontario and Quebec,  “we would encourage other provincial governments to develop similar Anti-SLAPP legislation. “

In conclusion: The Working Group revives a 2006 proposal for an Ombudsperson with a mandate to investigate allegations of business-related human rights abuse, and “we encourage the federal government to work together with provincial governments to develop a comprehensive national action plan on business and human rights. ”

For Oxfam Canada’s summary of the Working Group, see the Huffington Post article here , and here for the reaction of the Canadian Network on Corporate Accountability .

The Working Group Statement was also concerned with human rights abuses overseas by Canadian mining companies: see the analysis of the Working Group statement by Human Rights Watch here, or see “The ‘Canada Brand’: Violence and Canadian Mining Companies in Latin America“,  an extensive report in the Osgoode Law  Research Paper Series (December 2016).

Still advocating for Environmental Rights as Human Rights. Evidence from Alberta, and innovative proposals for Nova Scotia

The Pembina Institute recently compiled three case studies related to energy development in Alberta, in an effort to document the adverse effects on individuals, communities and regions that result from weak environmental laws or regulatory enforcement.  The Environmental Law Centre in  Alberta also  published a series of reports in late 2016, including a module, Substantive Environmental Rights , which discusses environmental rights as a human right. Since 2014, the Blue Dot campaign, led by the David Suzuki Foundation and Ecojustice ,  has been advocating for environmental rights to be enshrined in the Canadian Charter of Human Rights and Freedoms.

Now, from the Pembina Institute comes The Right to a Healthy Environment: Documenting the need for environmental rights in Canada.  It consists of:  Case Study #1:  Individual impacts of intensive hydraulic fracturing activity in rural Alberta   ;  #2 Community impacts of air pollution in urban central Alberta (related to coal-fired electricity plants), and #3 Regional impacts of oilsands development in northern Alberta   (which examines the rights of First Nations).

In Nova Scotia, the Nova Scotia Environmental Rights Working Group of the East Coast Environmental Law Association  released their proposed and innovative  Nova Scotia Environmental Bill of Rights  on April 21 2017.  The bill states that the people “have a right to a healthy and ecologically balanced environment”, and that the “primary responsibility” to protect and conserve that environment falls to the province.  It also states that “there is a history of environmental racism in Nova Scotia that has disproportionately and negatively affected historically marginalized, vulnerable, and economically disadvantaged individuals, groups or communities, particularly Indigenous People and African Nova Scotians”.  The bill is based on the Precautionary Principle, the Polluter Pays Principle, the Non-Regression Principle, the Intergenerational Equity Principle, and the Principle of Environmental Justice and Equity.  Nova Scotians go to the polls in a general election on May 30; a guide to the policy positions of the Liberal, Conservative and NDP parties is here at the CBC website.  According to the Ecology Action Centre in Halifax, the provincial NDP party has pledged to support an Environmental Bill of Rights .

 

 

 

 

Case studies of Community and human rights impacts of Renewable energy companies, and a ranking of multinationals in Ag/Food, Apparel and Mining

renewable energy investor briefing coverAn April 2017 report from the London-based advocacy group,  Business and Human Rights Resource Centre asks,  “What adverse impacts can renewable energy projects have on communities around the world?”   Renewable Energy investor briefing: Managing risks & responsibilities for impacts on local communities  (April 2017) is directed at financial and investment professionals who are considering investment in renewable energy projects- in this report, comprised of wind and small-to-medium hydro, but excluding solar .  It starts from the premise that Just Transition principles are essential, then explains the international human rights responsibilities of companies.  The report also provides examples of the kinds of questions that should be asked in shareholder meetings and before investment decisions are made, and gives examples of best practice policies – for example, inclusion of community benefits agreements.  One of the main issues it discusses is the right to free, prior and informed consent of Indigenous peoples, which is an ongoing topic monitored by the BHRC.

The report provides case studies, including  six positive examples, including: the Ixtepec community-owned wind project in Mexico; the Jeffreys Bay Wind Farm in South Africa; and  a cluster of wind projects in Jämtland, Sweden, for which OECD guidelines are being used in negotiations between the company and affected Indigenous people.  The full suite of case studies is presented in a searchable database which allows searching by company name, issue, country, and more.  There are no Canadian projects included in the 2017 report, although a profile of Ontario Power Generation  is available as part of the Centre’s ongoing database  of human rights in the energy sector  .

In March 2017, the Centre also launched an updated and expanded  Corporate Human Rights Benchmark website , which ranked 98 of the world’s largest publicly traded companies, from the  Agriculture, Apparel, and Extractive industries. The Benchmark is intended to drive a “race to the top” and is directed at business, government, and “ to empower civil society, workers, communities, customers, and the media with better public information to reward, encourage, and promote human rights advances by companies and make well-informed choices about which companies to engage with.”  A 50 page summary report is here .  There are six thematic measurement categories, including “ Company Performance: Human Rights Practices”  which  includes rankings related to living wage, freedom of association and right to bargain collectively, health and safety, amongst others.

The Women’s March was a huge success. Next up – Sustained Resistance

toronto women's march jan 2017.jpgUnionists were among the hundreds of thousands of Canadians who joined in the Sister Marches for the Women’s March in Washington on January 21, 2017 .  The Canadian Labour Congress statement of “Why we March” is here  .  Unifor’s President Jerry Dias  endorsed the March and called for a “united mobilization effort” against the Trump agenda.  The March was an undeniable success,  and the Washington organizers, quoted in a Globe and Mail report,  recognized:   “This is more than a single day of action, this is the beginning of a movement – to protect, defend and advance human rights, even in the face of adversity. ”

Jeremy Brecher of Labor Network for Sustainability tackles this issue for U.S.  labour unions in “How Labor and Climate united can trump Trump” . After cataloguing some of the worst threats under a Trump administration , he calls  for “an alliance of unions and allies willing to fight the whole Trump agenda”  and states: “Such a “big tent” needs to include unions that are not part of the AFL-CIO, such as SEIU, Teamsters, and National Education Association. Some unions may choose not to join because they are unwilling to take a forthright stand against the Trump agenda; it would be both absurd and catastrophic for that to prevent the rest of the labor movement and its allies from taking on a fight that is about the very right of unions to exist.”

The United Resistance, led by the  NAACP, Greenpeace USA, and the Service Employees International Union, is chief among these new alliances, pledging to “stand together”  on the issues of civil rights, immigrants, women’s reproductive rights, social equality, action on climate change, public health and safety, public dissent, and access to information. Their inspirational video is here , as well as a list of the alliance members. The AFL-CIO is not listed as a member of the United Resistance, though their recent blogs oppose Trump’s nominees, and they promoted the Women’s March.   For more about the United Resistance, see  “More than 50 Organizations Launch United Resistance Campaign as Trump’s Cabinet Hearings Begin”  in Common Dreams (Jan.10).

In a second article , SOCIAL SELF-DEFENSE: Protecting People and Planet against Trump and Trumpism ,  Jeremy Brecher borrows a term from the Solidarity movement in Poland 40 years ago, and takes a larger, more global focus.  He writes that “Social Self Defense includes the protection of the human rights of all people; protection of the conditions of our earth and its climate that make our life possible; the constitutional principle that government must be accountable to law; and global cooperation to provide a secure future for people.”  “Social Self-Defense is not an organization – it is a set of practices to be engaged in by myriad organizations, hopefully in close coordination with each other.”  Although the article highlights a number of examples, such as the growing Sanctuary movement in the U.S.,  and case studies of alliances, including  Vermont Labor Council Initiates Social Self-Defense ,  the overriding impact is to emphasize the scale of the task: “These actions appear to be on the way to being the greatest outpouring of civil resistance in American history.”

International Criminal Court expands its priorities to include cases of environmental destruction

The International Criminal Court in The Hague, normally associated with war crimes of violence, on September 15  issued a new Policy Paper  which expands the terms of its case selection and prioritization  to include cases relating to “the destruction of the environment and the illegal exploitation of natural resources or the illegal dispossession of land.”  The Guardian summarized developments on September 15:  “ ICC widens remit to include environmental destruction cases” in The Guardian (Sept. 15) , and Global Witness issued a press release: “Company executives could now be tried for land grabs and environmental destruction”. The policy change comes as the  Prosecutor of the ICC considers whether to investigate a 2014 case filing that catalogues mass human rights abuses linked to systematic land seizures in Cambodia.  Global Witness, an advocacy group, published On Dangerous Ground in  June 2016,  documenting the extent of the problem:   “More than three people were killed a week in 2015 defending their land, forests and rivers against destructive industries. … we documented 185 killings across 16 countries – by far the highest annual death toll on record and more than double the number of journalists killed in the same period.”

berta-caceres-770x4702015 was also the year of the murder of Berta Cáceres,  the 2015 Goldman Environmental Prize-winner for her decade-long opposition to the Agua Zarca hydroelectric dam on her community’s land in Honduras.

The State of Climate Change Litigation: Can Canada and the U.S. follow Urgenda?

The landmark Urgenda decision in the Netherlands  in June 2015 has ignited and re-ignited activity around the world, around the prospect of using litigation to fight climate change . “Unlawful or Above the Law? ” in the CCPA Monitor (Nov/Dec. 2015) reviews the Urgenda decision in detail, and puts it in the context of Canadian policy and historical legal cases which have challenged Canada’s withdrawal from the Kyoto Protocol.   A fuller treatment of the article, titled Canada’s Failure to Reduce Greenhouse Gas Emissions (October 31, 2015) appears on the Lawyers’ Rights Watch Canada website . The authors advocate a legal challenge to Canada’s GHG emissions reduction policies. Much of the legal argument is based on the concept of environmental rights as human rights; a Canadian pioneer on this issue is David R. Boyd, whose article “ The Constitutional Right to a Healthy Environment” appeared in Environment Magazine in 2012  . (a fuller treatment appears in his book The Environmental Rights Revolution: A Global Study of Constitutions, Human Rights and the Environment (2012)).   A more recent publication by Ecojustice, The Right to a Healthy Environment: Canada’s Time to Act    (2015) , acknowledges a large debt to Boyd’s work, and the BlueDot movement  of the David Suzuki Foundation works in practical ways towards the goal. In December 2015, Toronto became the 100th municipality in Canada to pass a declaration supporting its residents’ right to a healthy environment . Climate Change: Tackling the Greatest Human Rights Challenge of our Time (Feb. 2015) by the Center for International Environmental Law and CARE considers how to address the issue within the UNFCCC process.

Regarding liability for climate change damages, West Coast Environmental Law in B.C. and the Vanuatu Environmental Law Association released Taking Climate Justice into our own Hands  on December 8, 2015  “which explains the legal basis for climate-impacted countries to set the rules for climate damages lawsuits and how those rules can be enforced against international fossil fuel polluters.” Further, the authors propose language for a Climate Compensation Act, based on common law and thus adaptable to in any country in the world. (Vanuatu released a Statement for Climate Justice in June 2015  ).  A newly-launched blog series by the Alberta Environmental Law Centre promises “to provide updates on climate change law developments and include insights from our related law reform research.”

The Sabin Center for Climate Change Law at the Columbia Law School, New York, publishes compendium of cases in the U.S. and non-U.S. , and maintains a database called Climate Change Laws of the World . In 2015, the Center published Climate Change in the Courts: An Assesment of non-U.S. climate litigation , as well as Climate Change and Human Rights 2015  (in cooperation with UNEP). The introduction states: “The question is no longer whether human rights law has anything to say about climate change, but rather what it says and how it can best be brought to bear. This report is the most detailed and comprehensive study yet undertaken of those questions”.

In a November 2015 blog, “Failure to take climate action is not only morally wrong, it’s illegal” Michael Burger discusses the Urgenda and Ashgar Legari case in Pakistan, and links them to current climate change cases in the United States.   Most high profile of these have been led by Our Children’s Trust, arguing for the right of children to live in a healthy environment. In November in Washington State  , Judge Hollis Hill ruled in favour of youth, stating that “[t]he state has a constitutional obligation to protect the public’s interest in natural resources held in trust for the common benefit of the people.” Other cases are being pursued by Our Children’s Trust in Massachusetts, North Carolina, Pennsylvania, and Colorado. In August 2015, Our Children’s Trust filed a landmark constitutional climate change lawsuit against the federal government in the U.S. District Court of Oregon; plaintiffs include 21 young people and climate scientist Dr. James E. Hansen, serving as guardian for his granddaughter and for future generations. The complaint document is here; the plaintiffs request a court order requiring the President to implement a national plan to decrease CO2 to a safe level, defined as 350 ppm by the year 2100. In January 2016, a judge granted intervenor status  in the case to the National Association of Manufacturers, the American Fuel & Petrochemical Manufacturers ,the American Petroleum Institute, and other energy industry groups. To watch for: March 9, 2016: the first oral arguments will be heard in a Eugene Oregon court.

Internationally, cases claiming damages from climate changes are underway in the Philippines and Peru .  To keep up to date internationally, follow eLaws News by the Environmental Law Alliance Worldwide (ELAW) , who have also published Holding Corporations Accountable for Damaging the Climate (2014)   . The Center for International Environmental Law  also focuses on climate liability and climate justice.

Do Governments have a Legal Obligation to Protect their Citizens from Climate Change? Yes, say the Oslo Principles and Citizens in Netherlands and Belgium

In March, a group of experts in international, human rights, and environmental law released the Oslo Principles on Global Obligations to Reduce Climate Change. “These Principles set out the legal obligations of States and enterprises to take the urgent measures necessary to avert climate change and its catastrophic effects”. Based on a network of local, national and international laws, the Oslo Principles outline specific measures and assert that these should be undertaken “without regard to cost”. The lack of an international agreement does not relieve nations from their duty to their citizens.

The brief Principles document is accompanied by a more extensive Commentary (94 pages). The members of the Oslo Principles group are supporting a court challenge in the Netherlands, the first case in Europe in which citizens attempt to hold a state responsible for its inaction against climate change, and the first case in the world in which human rights are used as the legal basis for its arguments. The Urgenda Climate Case opened  on April 14, and a verdict is promised on June 24th. The plaintiffs are asking the Court to order the Dutch State to reduce its CO2 emissions by 40% below 1990 levels by 2020. A similar case is under preparation in Belgium.