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.