The adoption of the Paris Agreement in 2015 has been followed by a burgeoning strand of climate change litigation, with test cases being heard all over the world (see Columbia Law School database). Amongst others, litigants have argued that emissions are the proximate cause of adverse climate change impacts, thereby giving rise to specific liability. One of the boldest efforts to test the boundaries of the law in this area is a petition currently being heard by the Commission on Human Rights of the Philippines (CHR or Commission). The petition originated in 2016, when after a surge of typhoons wreaking havoc in the Philippines, Greenpeace Southeast Asia, Pilipino human rights groups and citizens requested the Commission to investigate the responsibility of 47 oil, gas, coal, and cement companies for human rights violations or threats thereof resulting from the impacts of climate change (so-called Carbon Majors petition). The petition has attracted much attention in the media and numerous academics and civil society organisations have submitted amicus briefs in support of the petitioners. Last week, the Commission groundbreakingly asserted its jurisdiction to investigate the petition (CHR press release). The Commission also announced multiple fact-finding missions and public hearings in 2018, to be held both within and without the Philippines. This post reflects on the international law implications of the petition for arguments concerning the liability of corporations for alleged human rights violations associated with the impacts of climate change in a transnational context.
Similar to other national human rights institutions, the CHR has a mandate to investigate:
all forms of human rights violations involving civil and political rights and to investigate and monitor all economic, social and cultural rights violations and abuses, as well as threats of violations thereof, especially with respect to the conditions of those who are marginalized, disadvantaged, and vulnerable (Rule 2, Omnibus Rules of Procedure).
Some respondents challenged the Commission’s jurisdiction to hear the petition. Citing the Lotus case, they argued that a State’s jurisdiction is limited ‘only to the confines of its physical boundaries’ (e.g. Cemex, at 11). As we explained in our amicus brief, States frequently exercise adjudicatory and legislative jurisdiction over persons or events outside their territory, as long as there is a clear connecting nexus between that State and the person or conduct that it seeks to regulate. Therefore, and contrary to what was suggested by the respondents, the exercise of the Commission’s jurisdiction over foreign corporations is neither an ‘act of interference’ or ‘usurpation’ of other States’ sovereignty (Cemex, at 16), nor ‘tantamount to an undue encroachment on the territorial jurisdiction and sovereignty of such other States where Respondents are domiciled and operate’ (Shell, at 1). As long as the Commission’s investigation falls within one of the established principles of jurisdiction, it is in accordance with international law. The most relevant principles for the purposes of the petition are the territorial and the protective principles.
The authority of States to exercise legislative or adjudicative jurisdiction over acts that take place in their own territory is one, albeit important, aspect of the territorial principle. The other is the so-called effects doctrine, which gives States ‘more leeway to unilaterally stretch the arm of their domestic laws in order to clamp down on harmful acts arising beyond their borders’ (Ryngaert, ‘Jurisdiction Towards a Reasonableness Test’ 194).
Already in 1945, Judge Learned Hand noted in the Alcoa case:
It is settled law…that any State may impose liabilities, even upon persons not within its allegiance, for conduct outside its borders that has consequences within its borders, which the State reprehends (para 118).
The effects doctrine has been acknowledged in the Lotus and in the Arrest Warrant cases. Currently, it finds wide application especially in relation to antitrust, tort, bribery and corruption, security, insolvency and criminal law. Accordingly, the territorial principle leaves ample scope for the CHR to exercise its jurisdiction over human rights violations carried out by corporations headquartered outside the Philippines, as long as the relevant conduct is either initiated or completed within the Philippines, or because its effects are felt within the Philippines.
Also of relevance is the protective principle, which authorises States to protect themselves by regulating and adjudicating over conduct carried out abroad that may damage their essential interests. The principle applies regardless of the place of commission or of nationality of the alleged offender or victim. Since the 1980s, it has been applied outside the context of criminal law where it was initially developed. It is generally accepted that the application of the protective principle can only be justified by the need to protect ‘essential’ or ‘vital interests’ of the State, but there is little consensus on how these should be defined. States have increasingly relied on the protective principle to ensure environmental protection. For example, both Canada and the United States have relied on the protective principle to address oil spills pollution, through the 1970 Arctic Water Pollution Prevention Act and the 1990 Oil Pollution Act, respectively.
These precedents clearly show that the Philippines CHR could in principle rely on the protective principle to assert its jurisdiction. In this connection, it is irrelevant whether any of the major emitters do business in the Philippines, as long as the effects of their activities may be regarded as a threat to essential or vital interests of the Philippines. The Carbon Majors petition set out with the ambitious mission to prove exactly that this is the case.
Climate Change Impacts and Human Rights: Establishing a Link
The Carbon Majors petition reflects the growing recognition of the links between States’ obligations under human rights and climate change law. For the first time in the history of multilateral environmental agreements, the preamble of the 2015 Paris Agreement acknowledges that parties ‘should, when taking action to address climate change, respect, promote and consider their respective obligations on human rights’. An increasingly long string of Human Rights Council resolutions emphasises human rights obligations, standards and principles’ ‘potential to inform and strengthen’ climate change law- and policy-making by ‘promoting policy coherence, legitimacy and sustainable outcomes’. The adoption of the Paris Agreement inaugurated a new season in cooperation between international human rights and climate change bodies (Savaresi, 2017). UN human rights bodies have made formal submissions on matters under consideration under the climate regime, and elicited expert recommendations on how to best integrate human rights into climate policy. Furthermore, standards developed by intergovernmental bodies dealing with matters such as climate finance increasingly make explicit references to human rights considerations (see OHCHR and Heinrich Böll Stiftung, 2017).
Hitherto, little climate change litigation has been argued on human rights grounds. Qualifying the effects of climate change as human rights violations poses a series of technical obstacles, including disentangling complex causal relationships and projections about future impacts (A/HRC/10/61, para. 70). Yet, these obstacles are not insurmountable. The suitability of human rights law to address harm caused by climate change depends upon whether a victim can substantiate a claim that a duty bearer has contributed to climate change, in such a way as to amount to a human rights violation. In this regard, Special Rapporteur Knox has persuasively argued that, as scientific knowledge improves, tracing causal connections between particular emissions and resulting harms is less difficult (A/HRC/31/52, paras 36-37). Furthermore, States’ well-established obligation to address environmental harm that interferes with the full enjoyment of human rights can be interpreted in a way to extend to human rights violations caused by climate change impacts (A/HRC/22/43, paras 18-24). As not all parties to the climate regime have ratified the same human rights treaties, States’ obligations in this connection may vary to a certain extent. Yet, the work of the Special Rapporteur demonstrates that it is possible to identify a set of core obligations associated with the protection of human rights in relation to environmental matters (A/HRC/25/53, paras. 79-81)
These core obligations include procedural obligations to assess impacts on the enjoyment of human rights and to make environmental information public, to facilitate participation in environmental decision-making, and to provide access to remedies. States also have substantive obligations to adopt legal and institutional frameworks protecting against harm interfering with the enjoyment of human rights. Most saliently for the present purposes, this includes harm caused by private actors. This obligation does not require States to prohibit all activities that may cause any environmental degradation. Instead, States have discretion to strike a balance between environmental protection and other legitimate societal interests. Knox has emphasized that this balance cannot be unreasonable, or result in unjustified, foreseeable infringements of human rights. In assessing whether a balance is reasonable, national and international health standards may be particularly relevant, with a strong presumption against retrogressive measures. Finally, in addition to a general non-discrimination requirement, States may owe specific obligations to members of groups particularly vulnerable to harm (Ibid.).
All of these elements come together in the Carbon Majors petition. The petition addresses harm caused by private actors, which is largely foreseeable and that also affects groups particularly vulnerable to harm. Article 8 of the Paris Agreement refers for the first time to the matter of loss and damage caused by climate change and initiated a process to develop recommendations for approaches to avert, minimise and address human displacement, and facilitate parties’ efforts to develop and implement comprehensive risk management strategies (Decision 1/CP.21, at 49). Even though Parties have for the time being excluded using this process as a means to establish liability for climate change impacts under the climate regime (Decision 1/CP.21, at 51), this does not in any way preclude the validity of human rights law claims in general. Human rights law therefore potentially lends itself to hold to account human rights duty bearers, thus potentially also corporations, for human rights violations associated with the impacts of climate change.
The Business and Human Rights Regime
The Business and Human Rights regime consists of hard and soft rules under international law and domestic law that regulate the relationship between the State, corporate entities and individuals. International law clearly imposes upon States wide-ranging obligations to protect the human rights of individuals from infringements by third parties, including corporations.
In the specific case of the Carbon Majors petition, the State duty to protect the human rights invoked by the petitioners – to life, to health, to food, to water, to sanitation, and to housing – from corporate violations, is well-established in the interpretative work of UN treaty bodies, special procedures, and in international jurisprudence (see e.g. E/C.12/GC/24). States ordinarily prevent, stop, or obtain redress or punishment for third party interference through regulation of private party conduct, inspection and monitoring of compliance, or administrative and judicial sanctions enforced against non-compliant third parties, such as polluting industries.
By logical inference, the (uncontested) existence under international human rights law of the State duty to protect individuals from corporate violations of human rights, should disclose the scope of binding international obligations of corporations (see Clapham 2006 and 2017; and ILA). This inference has not been borne out by part of doctrine, or by some States and corporate entities. Instead, in 2011, the ‘corporate responsibility to respect’, defined in the UN Guiding Principles on Business and Human Rights as a ‘global standard of expected conduct’, was met with broad agreement (at 13). While the Guiding Principles specify that the responsibility of business enterprises to respect human rights is distinct from issues of legal liability and enforcement, ‘which remain defined largely by national law provisions in relevant jurisdictions’ (Ibid, at 14), corporations are expected ‘at a minimum’ to respect human rights expressed in the International Bill of Human Rights and in the International Labour Organization’s Declaration on Fundamental Principles and Rights at Work (Principle 12).
At an operational level, the corporate responsibility to respect translates in the duty of due diligence, which requires corporations ‘to identify, prevent, mitigate and account for how they address their adverse human rights impacts’ (Principle 17). Special Representative Ruggie clarified that corporate human rights violations can result from ‘environmental impacts—for example, related to water and health’, including such impacts that have a ‘delayed effect’ (OHCHR, 2012, at 8 and 53). In this connection, corporations should rely on ‘established and quite precise international as well as national standards’ in undertaking due diligence in relation to these environmental impacts (ibid).
Recent interpretative work of treaty bodies and international jurisprudence provide indications that the corporate responsibility to respect human rights has either gained traction as a firmer obligation and/or that corporate obligations may exist under international human rights law in addition to the soft law responsibility and domestic law obligations. Most recently, the treaty body monitoring the implementation of the International Covenant on Economic, Social and Cultural Rights (ICESCR), noted:
under international standards, business entities are expected to respect Covenant rights regardless of whether domestic laws exist or are fully enforced in practice. The present general comment therefore also seeks to assist the corporate sector in discharging their human rights obligations and assuming their responsibilities, thus mitigating any reputational risks that may be associated with violations of Covenant rights within their sphere of influence (CESCR, General Comment 24, para. 5).
The 2016 arbitral award in Urbaser v Argentina is particularly relevant:
On a preliminary level, the Tribunal is reluctant to share Claimants’ principled position that guaranteeing the human right to water is a duty that may be born solely by the State, and never borne also by private companies like the Claimants. When extended to human rights in general, this would mean that private parties have no commitment or obligation for compliance in relation to human rights, which are on the States’ charge exclusively (para. 1993).
After examining international developments in the area of business and human rights, and specifically the Guiding Principles, as well as provisions of the ICESCR and the Universal Declaration of Human Rights, the Tribunal concluded:
At this juncture, it is therefore to be admitted that the human right for everyone’s dignity and its right for adequate housing and living conditions are complemented by an obligation on all parts, public and private parties, not to engage in activity aimed at destroying such rights (emphasis added, para. 1999).
Other international courts have relied on the UN Guiding Principles to establish that businesses ‘must respect and protect human rights, as well as prevent, mitigate, and accept responsibility for the adverse human rights impacts directly linked to their activities’. The Inter-American Court of Human Rights reached this conclusion in a case involving mining activities that resulted ‘in the adverse impact on the environment and, consequently, on the rights of the indigenous peoples’ (Kaliña and Lokono Peoples v. Suriname, para. 223).
In a similar vein, the Working Group on the issue of human rights and transnational corporations and other business enterprises has submitted letters of allegations and urgent appeals to both States and companies. One would have to go to great lengths to explain how the UNWG is able to submit communications to companies about alleged human rights violations, if the latter had no existing obligations to respect human rights (see Cismas and Macrory, The Business and Human Rights Regime under International Law: Remedy Without Law?, forthcoming). These examples point to the relevance to the Carbon Majors petition of the corporate responsibility to respect and its corollary duty of due diligence, which requires corporations to account for and address adverse human rights impacts, possibly including also those associated with climate change.
Conclusion: History in the Making?
The decision of the CHR to investigate the Carbon Majors petition is unprecedented and potentially gravid with consequences for the future of climate change litigation. It also sets an important precedent for the development of the body of human rights law in relation to environmental protection and corporate obligations. As many times before, human rights law is being used as a means to make up for the shortcomings of environmental law on matters of enforcement. The Carbon Majors petition may thus well become a milestone in the interplay between environmental and human rights law. Experts from both areas will therefore be impatiently waiting to see what conclusions the Commission will draw, after having already made history by deciding to investigate the Carbon Majors petition in the first place.