Category: Vulnerability

Categories
Adaptation Biodiversity Children and young people Deforestation Domestic court Emissions reductions/mitigation Farming Imminent risk Indonesia Loss & damage Paris Agreement Right to a healthy environment Right to development and work Right to education Right to health Right to housing Right to life Right to subsistence/food Right to water Sea-level rise Vulnerability

Indonesian Youths and others v. Indonesia (Rasya Assegaf and 12 others v. Indonesia)

Summary:
This case was brought by thirteen children, youth, and members of vulnerable groups from different parts of Indonesia, all of whom allege that they are affected by the Indonesian Government’s response to climate change. The seven youth plaintiffs, aged 7-29, together with six adults whose involvement in agrarian and farming activities renders them particularly vulnerable, invoke their constitutitional rights to life, to live in physical and spiritual prosperity in a good and healthy environment, to self-development through the fulfillment of basic needs, to food and water, to education, to work and earn a decent living, as well as the minor plaintiffs’ rights as children. They brought their complaint to Indonesia’s National Commission of Human Rights, the counrty’s independent national human rights authority, calling on it to exercise its monitoring and mediating function.

The complaint in depth:
The plaintiffs in this case emphasize that the Indonesian government has recognized the country’s extreme vulnerablility to the impacts of climate change, including to sea level rise, heat waves, storm surges, tidal flooding, shifts in the wet and dry seasons, changes to rain patterns, decreased food production, disturbances in the availability of water, the spread of pests, plant and human diseases, the sinking of small islands, and the loss of biodiversity. They also emphasize that Indonesia is already experiencing many of these serious climate change impacts, and that these will only continue to get worse.

In their submissions to the National Commission of Human Rights, the plaintiffs particularly emphasize the effects of heat stress combined with Indonesia’s humid climate; the loss of food security and livelihoods in fishing and tourism due to coral bleaching and a decrease in fish stocks; unpredictable precipitation patterns and resulting drought, water insecurity and flooding; and the impacts of heat and precipitation changes on agriculture, food and water security, and plant diseases and pests. They also emphasize the risks associated with tidal floods, high waves, saltwater intrusion and strong winds due to sea level rise, which endanger lives and will cause a loss of living space, shelter, food and water insecurity. In this regard, they note research by the World Bank and the Asian Development Bank that shows that, in a high emissions scenario, and without adaptation, more than 4,2 million Indonesians will be affected by permanent tidal flooding by 2070–2100. This same research shows that 5.5-8 million Indonesian people will be affected by flooding from once-in-a-century storm surges by 2030. In addition, they note that climate change causes a higher incidence of vector-borne diseases affecting children and vulnerable populations, such as malaria, dengue fever, and cholera. Several of the plaintiffs have suffered from these diseases already. Other impacts on the health of children include air pollution, malnutrition and stunting, drowning during floods, coastal flodding, and mental health impacts such as climate anxiety. Citing a study from the American Psychological Association, they argue that experiencing extreme weather events leads to higher rates of depression, anxiety, posttraumatic stress disorder, drug and alcohol use, domestic violence, and child abuse.

The plaintiffs emphasize that they have already experienced flooding, cyclones, extreme heat, vector-borne illness, climate anxiety, and impacts on their homes and agricultural or fishing livelihoods. They submit that the Government of Indonesia has a constitutional responsibility to protect them from the human rights impacts of the climate crisis, and allege that it has failed to do so by contributing to causing and exacerbating the climate crisis. Noting that Indonesia’s domestic law and its NDC under the Paris Agreement acknowledge the link between human rights and climate change, they submit that constitutional rights should be interpreted in harmony with international human rights law. This, they argue, means recognizing that Indonesia has obligations to mitigate and adapt to climate change, as well as cross-sectoral obligations to ensure that all climate adaptation and mitigation actions are inclusive, fair and participatory, and to prioritize the most affected and vulnerable populations.

The plaintiffs argue that the Indonesian government should prioritize mitigation through a moratorium on new coal-fired power plants and the licensing of palm oil plantation concesssions as well as by promoting sustainable polycultural and indigenous farming practices that will reduce its net GHG emissions and ensure crop resilience.

In terms of adaptation, the plaintiffs argue that Indonesia should ensure protection especially of those living in vulnerable areas, including small islands, riparian and lowland areas, coastal areas, and dry areas. This should take place through a community-oriented, inclusive and participative process, and should serve to upgrade infrastructure, provide social protection mechanisms, prioritize nature-based adaptation through ecosystem restoration, strengthen the resilience of food systems and ensure that adaptation does not take place at the expense of any vulnerable groups or future generations. In particular, they emphasize the rehabilitation of mangrove and coral ecosystems, given their function as natural flood and erosion protection; the promotion of sustainable agricultural practices, and procedural obligations to ensure consultation, information, inclusivity and equity.

The plaintiffs note Indonesia’s knowledge of climate change, its commitment to the Paris Agreement’s 1.5 degree warming target under its Updated NDC, and its awareness of the risk of huge economic losses due to the dangers of climate change. Against this background, they argue that Indonesia has violated its human rights obligations by failing to mobilize the maximum available resources and take the highest possible level of ambition in mitigating its emissions, noting that it is one of the world’s largest emitters of land use change and energy emissions and the world’s seven largest emitter of cumulative emissions. They argue that, to align with the 1.5°C degree warming scenarios, Indonesia needs to limit its emissions from 660 to 687 million metric tons of CO2e by 2030. It is failing to do so, instead expanding its coal-fired power plant network and supporting ongoing deforestation.

The plaintiffs argue that these measures, i.e. the government’s failure to take adaptive steps, and its contribution to and exacerbation of climate change, have violated their right to a healthy environment, their right to health, their right to life and their rights to food and water. As concerns their right to development, the plaintiffs argue that “[t]he impact of climate change on the right to development has a ripple effect across all human rights”. They also link the government’s policies to impacts on their enjoyment on the right to education and the right to work and earn a decent living. Lastly, for the child applicants, they note risks for the enjoyment of the highest attainable standard of physical and mental health, access to education, proper food, proper housing, safe drinking water, and sanitation.

Measures requested:
The Plaintiffs request that the Commission:

  • State that climate change is a human rights crisis, and that each additional degree of heating will cause further impacts;
  • State that climate change has disrupted their rights to a healthy environment, life, health, and development through the fulfillment of basic needs, food, water, education, and employment; that the child plaintiffs are particularly vulnerable in this regard; and that the Government has violated its obligation to respect, protect, uphold and fulfill the plaintiffs’ human rights;
  • State that “the government has contributed to and continues to perpetuate the climate crisis by knowingly acting in disregard of the available scientific evidence on the necessary measures to mitigate climate change”, and that its actions — such as its approval of new coal-fired power plants, approval of large-scale deforestation and land clearing, and failure to implement basic adaptation measures — are an expression of this;
  • Recommmend immediate review of law and policy to reduce GHG emissions, mobilize resources, and minimize losses;
  • Recommend steps to reduce Indonesia’s national GHG emissions, including moratoria on new coal plants and on concessions for oil palm plantations, industrial forest plantations, and the clearing of peatlands; the promotion of sustainable and polycultural agricultural practices; and adaptation measures; and
  • Recommend an inclusive, fair, open, and effective approach to public participation in climate-related decision-making.

Developments in the case:
The case is still pending. However, in receiving the case during a hearing held on 14 July 2022, two of the Commissioners heard directly from the plaintiffs and welcomed the petition. Commissioner Choirul Anam stated that “climate change is an enormous problem, which influences various human rights. It is our job to push for better government actions in responding to climate change.”

Further information:
The text of the complaint in this case is available (in Bahasa and English) from ClimateCaseChart.com.

For a comment, see Margaretha Quina and Mae Manupipatpong, ‘Indonesian Human Rights Commission’s First Human Rights Complaint on the Impacts of Climate Change’, Climate Law Blog, 22 November 2022, available here.

Suggested citation:
National Commission of Human Rights of Indonesia, Indonesian Youths and others v. Indonesia, complaint filed on 14 July 2022.

Last updated:
8 August 2023.

Categories
2023 Biodiversity Children and young people Deforestation Domestic court Emissions reductions/mitigation Farming Indigenous peoples' rights Loss & damage Right to a healthy environment Sea-level rise Separation of powers Standing/admissibility United States of America Victim status Vulnerability

Navahine F., a Minor v. Dept. of Transportation of Hawai’i et al.

Summary:
In Junuary 2022, fourteen young people filed suit against the Department of Transportation of the US state of Hawai’i, its Director, the state’s Governor, and the State itself. In Hawai‘i Circuit Court, they alleged that the state’s transportation system violated the Hawai‘ian Constitution’s public trust doctrine and the right to a clean and healthful environment that it enshrines. The plaintiffs argued that the state and its authorities had “engaged in an ongoing pattern and practice of promoting, funding, and implementing transportation projects that lock in and escalate the use of fossil fuels, rather than projects that mitigate and reduce emissions”. Arguing that Hawai’i was the most carbon-dependent state in the nation, they sought declaratory and injunctive relief. They made a variety of arguments about the destruction of the Hawai’ian environment, coral reefs, native species of plants and marine life, and beaches; about their health and well-being, including about climate anxiety and about existing health conditions that are aggravated by the effects of climate change; about flooding and its impact on their ability to go to school; about water and food security, including impacts on traditional food sources, traditional and indigenous ways of life and culture; about wildfires; and about climate anxiety.

Claims made:
The plaintiffs note that Article XI, section 1 of the Hawai‘i Constitution requires Defendants “[f]or the benefit of present and future generations,” to “conserve and protect Hawai‘i’s natural beauty and all natural resources.” Article XI, section 1 further declares that “[a]ll public natural resources are held in trust by the State for the benefit of the people.” The Constitution also explicitly recognizes the right to a clean and healthful environment. Noting the special vulnerability of Hawai’i to climate-related ecological damage, including from sea-level rise, and the disproportionate harm to children and youth, including the lifetime exposure disparities concerning extreme events such as heat waves, wildfires, crop failures, droughts, and floods, they allege that the state of Hawai’i, through its Department of Transportation, has “systematically failed to exercise its statutory and constitutional authority and duty to implement Hawai‘i’s climate change mitigation goals and to plan for and ensure construction and operation of a multimodal, electrified transportation system that reduces vehicle miles traveled and greenhouse gas emissions, and helps to eliminate Hawai‘i’s dependence on imported fossil fuels”.

Ruling on Motion to Dismiss:
On 6 April 2023, the First Circuit Court rejected the respondent’s motion to dismiss the case for failure to state a claim. The state had argued that the public trust doctrine did not apply to the climate, “because climate is not air, water, land, minerals, energy resource or some other “localized” natural resource.” It had also argued that any efforts by the state would not have an impact on climate change given the scale of the problem.

The Court held in this regard that, in any event, the state as trustee had an obligation to keep its assets, i.e. its trust property, from falling into disrepair. It thereby rejected the argument that climate change was “too big a problem” and the idea that the state had no obligation to reasonably monitor and maintain its natural resources by reducing greenhouse gas emissions and planning alternatives to fossil-fuel heavy means of transportation. The Court also recognized that “the alleged harms are not hypothetical or only in the future. They are current, ongoing, and getting worse.”

On the argument that the applicants did not have a sufficient interest in the case, the Court held that the plaintiffs “stand to inherit a world with severe climate change and the resulting damage to our natural resources. This includes rising temperatures, sea level rise, coastal erosion, flooding, ocean warming and acidification with severe impacts on marine life, and more frequent and extreme droughts and storms. Destruction of the environment is a concrete interests (sic).”

Finding that arguments based on the political question doctrine were premature in this case, and citing case-law finding that this doctrine does not bar claim based on public trust duties, the Court denied the motion to dismiss the case.

Trial date set:
It was announced in August 2023 that trial dates for this case had been scheduled for 24 June-12 July 2024 at the Environmental Court of the First Circuit for Hawai’i. This would make this only the second-ever constitutional rights climate case to go to trial in the United States, after the Held and others v. Montana case. The case will be heard by First Circuit Judge John Tonaki.

Further information:
For the ruling of the First Circuit Court, see here.

Suggested citation:
First Circuit Court of the State of Hawai’i, Navahine F., a Minor v. Dept. of Transportation et al., Civ. No. 1CCV-22-0000631, ruling of 6 April 2023.

Last updated:
16 August 2023

Categories
Access to a remedy Children and young people Extreme poverty Haiti Human dignity Inter-American Human Rights System Right to life Vulnerability

Petition of Children of Cité Soleil and SAKALA

Summary:

On 4 February 2021, six children of Cité Soleil, Haiti and a community center established to provide safe harbor for children in Cité Soleil (SAKALA Community Center for Peaceful Alternatives) communicated a petition to the Inter-American Commission on Human Rights alleging human rights violations arising from the adverse environmental conditions that they are subject to.  

Facts of the case:

The petitioners’ concern relates to the local waste management system in Cité Soleil, which is woefully inadequate and exposes residents to risks arising from toxic waste and fumes. They complain that waste from other cities is brought into Cité Soleil but not contained in sanitary landfills or subjected to waste treatment. Piles of trash are burnt in the open, worsening the air quality, and floods carry the trash into residential areas, and lead to the contamination of water sources. They argue that climate-related adverse events magnify the adverse environmental conditions that children in Cité Soleil are faced with, aggravating their vulnerability.  

Claims:

The petitioners allege that Haiti is engaged in violations of the rights of the child, the right to dignity, the right to life, and the right to judicial protection of children in Cité Soleil. They request the Commission to recommend Haiti to undertake concrete measures addressing the environmental pollution problem and providing specialized and adequate medical care to the children. Aside from requesting an investigation on the matter and granting the reliefs sought, the petitioners have requested the Commission to grant precautionary measures of protection in the interim- requiring Haiti to take urgent measures and protect the children in Cité Soleil from harm.  

Status of the case:

The Inter-American Commission on Human Rights is yet to decide on the admissibility of the petition.  

Links:

For the petition (in English), click here.

Last updated:

2 August 2023.

Categories
2023 Canada Children and young people Domestic court Emissions reductions/mitigation Non-discrimination Paris Agreement Right to life Standing/admissibility Vulnerability

Mathur et al. v. HM the Queen in Right of Ontario

Summary:
On 25 November 2019, seven Canadian young people and the NGO Ecojustice brought a case against the State of Ontario, arguing that it had failed to take adequate action to mitigate its greenhouse gas emissions and contesting the State’s “dangerously inadequate GHG reduction target” as set out under the Cap and Trade Cancellation Act of 2018. Under this legislation, Ontario aims to reduce GHG emissions to 30% below 2005 levels by 2030. To contest the adequacy of this target, and the previous repeal of the more ambitious Climate Change Act (with its target of 45% reductions by 2030), the applicants invoked sections 7 and 15 of the Canadian Charter of Rights and Freedom (the right to life, liberty and security of the person and the right to equal protection under the law). Arguing that they have a serious and genuine interest in this case, which also impacts all Ontario youth and future generations, they noted that climate change will cause heat-related fatalities, harms to human health, increased fire activity and the spread of disease, increased flooding and other extreme weather events, harmful algal blooms and exposure to contaminants, harms to Indigenous peoples, and psychological harms and mental distress.

Claims made:
Noting the principle of common but differentiated responsibilities and the leading role of developed countries under the Paris Agreement, the applicants argued that Ontario’s current emissions reductions target compromises their right to life, liberty and security of the person “in a serious and pervasive manner that does not accord with the principles of fundamental justice”. They furthermore submitted that the target violated the right to liberty of Ontario’s youth and future generations, because it impacted their ability to make choices about their futures. They invoked the principle of “societal preservation” and human dignity, and argued for the recognition of a right to a stable climate system. Concerning the right to equal protection under the law, they argued that youth and future generations are in a uniquely vulnerable situation given their age and exclusion from political participation and the fact that they will be disproportionately impacted by climate change.

Relief sought:
Among other things, the applicants sought the invalidation of the existing emissions reductions targets and the rules for setting such targets, a declaration that it violates unwritten constitutional principles about avoiding harm, a recognition of the right to a stable climate system, and an order that Ontario must set out a science based GHG reduction target consistent with its share of global emissions.

Decision on admissibility:
On 12 November 2020, the Superior Court of Justice for Ontario rejected a motion from the government to dismiss the case. The government had invoked the absence of a right to a stable climate from the Charter, the plaintiffs’ alleged lack standing to represent future generations, and the absence of sufficient evidence or a reasonable cause of action.

Hearing:
A hearing in this case was heard from 12-14 September 2022.

Judgment:
On 14 April 2023, the Superior Court of Justice of Ontario delivered its judgment in the case. The Court found that, although the policies in question were justiciable given that the applicants had challenged specific state acts and legislation, the applicants had not established a violation of their rights under the Canadian Charter of Rights and Freedoms.

In her judgment, Justice Vermette noted that the issue of establishing Ontario’s “fair share” of the remaining carbon budget was not a justiciable issue, and “should be determined in another forum” (para. 109). Justice Vermette did consider it “indisputable that, as a result of climate change, the Applicants and Ontarians in general are experiencing an increased risk of death and an increased risk to the security of the person” (para. 120). However, she disagreed with the applicants’ characterization of the emissions reductions target as “authorizing, incentivizing, facilitating and creating the very level of dangerous GHG that will lead to the catastrophic consequences of climate change for Ontarians”, finding that “the target does not authorize or incentivize GHG” (para. 122).

While the target was not legally meaningless, and justiciable under the Charter, Justice Vermette found (contrary to the arguments of the applicants) that the question at issue was whether the Charter imposed positive obligations. Leaving this question open, albeit acknowledging that “the Applicants make a compelling case that climate change and the existential threat that it poses to human life and security of the person present special circumstances that could justify the imposition of positive obligations under section 7 of the Charter”, Justice Vermette found that any putative deprivation of Charter rights at stake was not contrary to “the principles of fundamental justice”, i.e. neither arbitrary nor grossly disproportionate. This test applies because the relevant right in the Charter, i.e. its Article 7, stipulates that “[e]veryone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.”

Concerning the equality claim under Article 15 of the Charter, Justice Vermette found that Ontario’s climate policy did not distinguish based on age, but made a temporal distinction, and that accordingly there was no violation of that provision either.

Further reading:

  • The judgment in the case is available here.
  • A comment on the judgment in this case, as well as its context, is available from Christie A. MacLeod, Annafaye Dunbar, and Rosemarie Sarrazin (Miller Thomson) here.

Suggested citation:
Superior Court of Justice for Ontario, Mathur v. Ontario, 2023 ONSC 2316, 14 April 2023.

Last updated:
22 June 2023.

Categories
Adaptation Biodiversity Children and young people Climate activists and human rights defenders Climate-induced displacement Deforestation Emissions reductions/mitigation Evidence Gender / women-led Indigenous peoples rights Indigenous peoples' rights Inter-American Human Rights System Loss & damage Paris Agreement Right to a healthy environment Right to health Right to life Right to property Rights of nature Vulnerability

The 2023 Advisory Opinion Request to the IACtHR on the Climate Emergency

Summary:
On 9 January 2023, the governments of Colombia and Chile jointly filed a request for an advisory opinion on the climate emergency and human rights to the Inter-American Court of Human Rights. The two governments requested clarification of the scope of States’ obligations, both in their individual and collective dimensions, in responding to the climate emergency within the framework of international human rights law, taking into account the different effects that climate change has on people in different regions and on different population groups, nature and human survival.

The governments asked the Inter-American Court to answer a series of questions grouped into six thematic areas, namely:

A. On the scope of States’ obligations to protect and prevent, including regarding their obligations to mitigate, adapt, regulate and monitor, and their response to loss and damage;

B. On States’ obligations to protect the right to life given the existing climate science, and taking into account the right of access to information and transparency of information, including under the Escazú Agreement;

C. On the obligations of States with respect to the rights of children and new generations, given especially the vulnerability of children;

D. On the State’s obligations concerning consultative and judicial procedures, taking into account the limited remaining carbon budget;

E. On the protective and preventative obligations concerning environmental and land rights defenders, as well as women, indigenous peoples and Afro-descendant communities; and

F. On shared and differentiated obligations and responsibilities in terms of the rights of States, the obligation of cooperation and given the impacts on human mobility (migration and forced displacement of people).

Extended summary:
In their request to the IACtHR, the two governments submit that they are already dealing with the consequences of the climate emergency, including the proliferation of droughts, floods, landslides and fires. These, they submit, underscore the need for a response based on the principles of equity, justice, cooperation and sustainability, as well as human rights. The two governments note that climate change is already putting humans and future generations at risk, but that its effects are not being experienced uniformly across the international community. Instead, given their geography, climatic conditions, socioeconomic conditions and infrastructure, they are particularly being felt in the most vulnerable communities, including several countries in the Americas. They emphasize that these effects are not proportionate to these countries’ and communities’ contribution to climate change.

The governments, in their request, emphasize the relevance of the right to a healthy environment, as well as other interrelated substantive and procedural rights (affecting life, human survival and future generations). They review the existing scientific evidence concerning the impacts and progression of climate change from the IPCC, and note the vulnerability of the Andean region. Emphasizing the utility of the human rights framework for understanding these harms, and “to advance and accelerate the collective response to the climate emergency in each State, regionally and globally”, they ask the Court to answer a series of questions “in order to provide guidance towards solutions based on human rights, with an intersectional perspective.” In doing so, they note the need for clear inter-American standards to accelerate the response to the climate emergency, arguing that while the concrete measures taken may vary, human rights obligations should be the framework for accelerating the response in a just, equitable and sustainable way.

The two governments refer to the 2017 Advisory Opinion of the IACtHR, which recognized the right to a healthy environment as an autonomous and individual right, and referred to the negative effects of climate change. However, they argue, there is a need to further clarify the human rights imapcts of climate change, and corresponding obligations. In this regard, they raise the existence also of collective rights for the protection of nature under international human rights and environmental law, and cite the need to protect fundamental biomes like the Amazon and to understand States’ shared but differentiated responsibilities in a way that copes with loss and damage. The two governments invite the Court to set out clear standards against the background of litigation and related developments, citing the Vanuatu advisory opinion request to the ICJ, the pending cases before the European Court of Human Rights, and the UN HRC’s Billy and ors. v. Australia case. An advisory opinion from the Court, they argue, would provide States with guidance for setting out domestic policies and programmes.

The questions asked:

A. On the State’s obligations of prevention and protection

Question A.1: What is the scope of States’ obligation to prevent climate phenomena created by global warming, including extreme events and slow-onset events, in accordance with their inter-American treaty obligations and in light of the Paris Agreement and the scientific consensus that calls to limit the increase in global temperature to 1.5°C?

Question A.2: In particular, what actions should States take to minimize the impact of climate-related damage, in light of their obligations under the American Convention on Human Rights (ACHR)? In this regard, what differentiated measures must be taken with respect to vulnerable populations or intersectional considerations?

Question A.2.A.: What must States consider in implementing their obligation to (i) regulate, (ii) monitor and oversee, (iii) order and approve social and environmental impact studies, (iv) establish a contingency plan, and (v) mitigate activities within their jurisdiction that aggravate or may aggravate the climate emergency?

Question A.2.B.: What principles should guide action towards mitigation, adaptation and the response to loss and damage created by the climate emergency in affected communities?

B. On the State’s obligations to protect the right to life given the existing scientific consensus

Taking into account the right to access to information and the obligations concerning the active production and transparency of information derived from Arts. 14, 4.1 and 5.1. of the ACHR, in light of Arts. 5 and 6 of the Escazú Agreement, the governments ask the Court to determine:

Question B.1.: What is the scope of States’ obligations in the face of the climate emergency, in terms of:

  • (i) the environmental information required;
  • (ii) the mitigation and climate adaptation measures to be adopted to address the climate emergency and the impacts of such measures, including specific just transition policies for groups and people particularly vulnerable to global warming;
  • iii) responses to prevent, minimize and address economic and non-economic loss and damage associated with the adverse effects of climate change;
  • iv) the production of information and access to information on greenhouse gas emissions levels, air pollution, deforestation, and short-lived climate pollutants, analysis of sectors or activities that contribute to emissions, and more; and
  • v) establishing impacts on people, such as on human mobility (migration and forced displacement), effects on health and life, non-economic losses, etc.?

Question B.2.: To what extent does access to environmental information constitute a right that must be ensured to guarantee the rights to life, property, health, participation and access to justice, among other rights that are negatively affected by climate change, in accordance with the State’s obligations under the ACHR?

C. On the differentiated obligations of States with respect to the rights of children and new generations

Citing Art. 19 ACHR and Art. 12 of the Convention on the Rights of the Child, and recognizing the consensus of the scientific community that identifies children as the group most vulnerable in the long term to the imminent risks to life and well-being expected to result from the climate emergency, the govenments ask the Court to determine:

Question C.1.: What is the nature and scope of a State Party’s obligation to adopt timely and effective measures in the face of the climate emergency to ensure the protection of children’s rights derived from its obligations under Articles 1, 4, 5, 11 and 19 ACHR?

Question C.2: What is the nature and extent of a State Party’s obligation to provide children with meaningful and effective means to freely and fully express their views, including the opportunity to initiate, or otherwise participate in, any judicial or administrative proceedings concerning the prevention of climate change that constitutes a threat to their lives?

D. On the State’s obligations concerning consultative and judicial procedures

In consideration of Arts. 8 and 25 ACHR, and taking into account the scientific finding that there is a limited greenhouse gas budget that can still be emitted before reaching a dangerous and irrevocable level of climate change, and that this budget would be exhausted within a decade, the States ask the Court to clarify:

Question D.1.: What is the nature and extent of the State Parties’ obligation concerning to the provision of effective judicial remedies to provide adequate and timely protection and redress for the impairment of rights due to the climate emergency?

Question D.2.: To what extent should the obligation to consult take into account the climatic consequences of a given activity or projections concerning the emergency?

E. On the protective and preventative obligations concerning environmental and land rights defenders, as well as for women, indigenous peoples and Afro-descendant communities

In accordance with Arts. 1.1 and 2 ACHR and Art. 9 of the Escazú Agreement, the governments as the IACtHR to determine:

Question E.1.: What measures and policies should States adopt in order to facilitate the work of environmental defenders?

Question E.2.: What specific considerations should be taken into account to guarantee women human rights defenders’ right to defend the healthy environment and their land?

Question E.3.: What specific considerations should be taken into account to guarantee the right to defend the healthy environment and land in light of intersectional factors and differentiated impacts, among others, on indigenous peoples, peasant communities and Afro-descendants?

Question E.4.: In the face of the climate emergency, what information should the State produce and publish in order to determine the possibility of investigating various crimes committed against human rights defenders, including reports of threats, kidnappings, homicides, forced displacement, gender violence, discrimination, etc.?

Question E.5.: What due diligence measures should States take into account to ensure that attacks and threats against environmental defenders in the context of the climate emergency do not go unpunished?

F. On shared and differentiated obligations and responsibilities in terms of the rights of States

Bearing in mind that the climate emergency affects the entire world, and that obligations to cooperate and repair arise from the ACHR and other international treaties:

Question F.1.: What considerations and principles should States and international organizations, collectively and regionally, take into account in analyzing shared but differentiated responsibilities in the face of climate change from a human rights and intersectionality perspective?

Question F.2.: How should States act both individually and collectively to guarantee the right to reparation for the damages generated by their actions or omissions in the face of the climate emergency, taking into account considerations of equity, justice and sustainability?

Taking into account that the climate crisis has a greater impact on some regions and populations, among them, the Caribbean, island and coastal countries and territories of the Americas, and their inhabitants:

Question F.3.: How should the obligations of cooperation between States be interpreted?

Question F.4.: What obligations and principles should guide the actions of States in order to ensure the right to life and survival of the most affected regions and populations in different countries and in the region?

Considering that one of the impacts of the climate emergency is to aggravate the factors that lead to human mobility (migration and forced displacement of people):

Question F.5.: What obligations and principles should guide the individual and coordinated actions to be taken by States in the region to address non-voluntary human mobility exacerbated by the climate emergency?

Consultation procedure:

In accordance with the Rules of Procedure of the IACtHR (Art. 73(3)), all interested parties (individuals and organizations) are invited to present a written opinion on the issues covered in the advisory opinion request. The President of the Court has established 18 August 2023 as the deadline for doing so. More information is available here.

Further information:

  • The text of the advisory opinion request is available here (in the official Spanish version as filed with the Court) and it has also been translated to English, French and Portuguese by the Court’s Secretariat.
  • For a comment by Juan Auz and Thalia Viveros-Uehara, see ‘Another Advisory Opinion on the Climate Emergency? The Added Value of the Inter-American Court of Human Rights’, EJIL:Talk! Blog, 2 March 2023, available here.
  • For a comment from Maria Antonia Tigre, see ‘A Request for an Advisory Opinion at the Inter-American Court of Human Rights: Initial Reactions’, Climate Law Blog, 17 February 2023, available here.
Categories
Adaptation Biodiversity Children and young people Deforestation Domestic court Emissions reductions/mitigation Human dignity Imminent risk Paris Agreement Peru Private and family life Right to a healthy environment Right to health Right to life Right to water Vulnerability

Álvarez et al. v. Peru

Summary:
This amparo case was filed before the Superior Court of Justice of Lima, Peru, on 16 December 2019. Brought by a group of young Peruvians, it alleges that the government has not taken adequate measures halt deforestation in the Amazon rainforest, a major carbon sink, and to take adequate mitigation and adaptation measures in the face of climate change. They submit that this particularly harms the rights of young people, whose futures are in jeopardy because of climate change.

Before the court, they invoke the constitutional and human right to a healthy environment, drawing in particular on the Peruvian Constitution, the ICESCR, and the Additional Protocol to the American Convention on Human Rights (also known as the “Protocol of San Salvador”). They also invoke their right to human dignity (Art. 1 of the Peruvian Constitution) and their right to life (Art. 2.1 of the Peruvian Constitution), along with — among others — the right to health and to water. They also invoke the preventive and precautionary principles and draw on constitutional principles concerning the conservation of biodiversity, the sustainable use of natural resources, the social function of law, the best interests of the child, solidarity and intergenerational equity.

The claimants submit that public policies on environmental protection are insufficient “to mitigate a problem that, according to scientific evidence, is worsening and threatens the very survival of the human species on the planet. This scenario is even more acute for the claimants – minors, born between 2005 and 2011 – whose future is severely compromised as a result of the current climate and ecological crisis. The conditions for their well-being and that of their descendants for decades to come depend, to a large extent, on the actions taken today. Tomorrow will be too late. In Peru – a megadiverse country that is vulnerable to climate change – the problem is particularly pressing. The plaintiffs, therefore, have suffered a violation of their fundamental right to enjoy a healthy environment, as well as threats to their fundamental rights to life, to a “life project” (“proyeto de vida”), to water and to health” (translation from the original Spanish by climaterightsdatabase.com)

Further information:

  • For an interview with one of the applicants in this case, see here.

Suggested citation:

Superior Court of Justice of Lima, Álvarez et al. v. Peru, constitutional complaint submitted on 16 December 2019.

Last updated:

17 March 2023

Categories
Adaptation Australia Climate-induced displacement Human Rights Committee Imminent risk Indigenous peoples rights Indigenous peoples' rights Private and family life Right to culture Right to life Sea-level rise Standing/admissibility Vulnerability

Billy et al. v. Australia (Torres Straits Islanders case)

Summary:
This petition against Australia was brought to the UN Human Rights Committee by a group of eight indigenous Torres Straits Islanders in 2019, in their own names and on behalf of their children. In their petition, they argued that the Australian government had violated their rights, as inhabitants of low-lying islands, under the International Covenant on Civil and Political Rights (ICCPR) because of its inaction in addressing climate change (failure to mitigate emissions and to take adaptation measures).

Rights at stake:
The applicants in this case invoked a series of rights in the ICCPR, on behalf of themselves and their children, contesting the respondent State’s failure to adopt mitigation measures to reduce greenhouse gas emissions and cease the promotion of fossil fuels. To support this, they drew on Article 27 (the right to culture), Article 17 (the right to be free from arbitrary interference with privacy, family and home), and Article 6 (the right to life) ICCPR. They argued that the indigenous peoples of the Torres Strait Islands, especially those who reside on low-lying islands, are among the most vulnerable to the impacts of climate change. They considered that the Australian government must ensure both mitigation and adaptation measures in order to adequately protect their rights. Previously, the Torres Strait Regional Authority (TSRA), a government body, had stated that “the effects of climate change threaten the islands themselves as well as marine and coastal ecosystems and resources, and therefore the life, livelihoods and unique culture of Torres Strait Islanders.”

Outcome:

On 21 July 2022, the Human Rights Committee adopted its Views in this case.

Observations of the State:

The Australian Government argued that the case was inadmissible, contesting the relevance of climate-related international agreements and its own ability to be held (legally or practically) responsible for climate-related harms. It also submitted that it was not possible to attribute climate change to the State party under international human rights law.

The HRC’s considerations on the admissibility:

On the issue of the exhaustion of domestic remedies, the Government’s position was that it did not owe a duty of care for failing to regulate environmental harm, and that it was not required to provide a remedy where (including in the present case) it understood there to be no breach of ICCPR rights. This question was accordingly reserved to the examination of the merits.

Concerning mitigation measures, the HRC noted that Australia is and has been a major greenhouse gas emitter, and ranks high on economic and development indices. As a result, it found that the alleged (in)actions fell under its jurisdiction under articles 1 or 2 of the Optional Protocol.

Concerning the imminence of the risk concerned, and accordingly the issue of victim status / standing, the Committee found that the authors of this Communication, “as members of peoples who are the longstanding inhabitants of traditional lands consisting of small, low-lying islands that presumably offer scant opportunities for safe internal relocation – are highly exposed to adverse climate change impacts”. Given the uncontested dependence of their lives and cultures on natural resources and phenomena, and their inability to finance adaptation measures on their own, the authors were considered to be “extremely vulnerable to intensely experiencing severely disruptive climate change impacts”. Given the authors’ allegations of serious ongoing adverse impacts, the HRC declared their claims under articles 6, 17, 24 (1) and 27 of the ICCPR admissible.

Merits:

Article 6

The Committee recalled that the right to life cannot be interpreted restrictively, and that it requires States to adopt protective measures (i.e. that it entails positive obligations). It recalled its own General Comment No. 36, issued in 2018, in establishing that the right to life also extends to reasonably foreseeable threats to life, including adverse climate change impacts and environmental degradation.

The Committee rejected Australia’s allegation that the interpretation of the ICCPR contained in this General Comment was not compatible with the rules of treaty interpretation under general international law. It then went on to recall its own earlier Teitiota v. New Zealand case (on climate-induced displacement), ultimately finding that the authors were not currently facing health impacts or real and reasonably foreseeable risks of being exposed harms to their right to life. The Committee also noted that the right-to-life claim being made largely related to the authors’ ability to maintain their culture, which falls under article 27 ICCPR.

Regarding the authors’ submission that, absent urgent action, their islands will become uninhabitable within 10 to 15 years, the Committee noted the adaptation and mitigation measures currently planned or being taken, and found that the time frame of 10 to 15 years could allow for additional protective measures or relocation programmes. As a result, it found that there had been no violation of the right to life in this case.

Article 17

The authors claimed that climate change already affects their private, family and home life, given that they may be forced to abandon their homes. The Committee considered that the authors’ dependence on marine and terrestrial resources and ecosystems is a component of their traditional indigenous way of life, falling under the scope of Article 17 ICCPR.

Considering the adaptation measures and related plans in place, the Committee noted the existence of unexplained delays in seawall construction and the lack of explanation concerning the loss of marine resources, crops and fruit trees. It noted the ongoing inundation of villages and ancestral burial lands; the withering of traditional gardens through salinification; the decline of nutritionally and culturally important marine species; coral bleaching and ocean acidification; and the authors’ anxiety and distress. The Committee also noted the importance of community lands for the authors’ most important cultural ceremonies. It accordingly found that:

“that when climate change impacts – including environmental degradation on traditional [indigenous] lands (…) – have direct repercussions on the right to one’s home, and the adverse consequences of those impacts are serious because of their intensity or duration and the physical or mental harm that they cause, then the degradation of the environment may adversely affect the well-being of individuals and constitute foreseeable and serious violations of private and family life and the home.”

Finding that Australia had failed to discharge its positive obligation to implement adequate adaptation measures to protect the authors’ home, private life and family, the HRC found a violation of the authors’ rights under article 17 ICCPR.

Article 27

Article 27 ICCPR recognizes the right of members of minority indigenous groups to the enjoyment of culture, and protects the survival and continued development of their cultural identity. Interpreted in the light of the UN Declaration on the Rights of Indigenous Peoples, this right enshrines the inalienable right of indigenous peoples to enjoy their traditional territories and natural resources. Here, the authors argued that their ability to maintain their culture has already been impaired due to climate change impacts, which have eroded their traditional lands and natural resources, for which there is no substitute on mainland Australia. The Committee found that these climate impacts represent a threat that was reasonably foreseeable by the State party, as the authors’ community had been raising the issue since the 1990s. While noting existing seawall construction projects, it considered that the delay in initiating these projects indicated an inadequate response by the State party to the threat in question. It found that the failure to adopt timely and adequate adaptation measures “to protect the authors’ collective ability to maintain their traditional way of life, to transmit to their children and future generations their culture and traditions and use of land and sea resources discloses a violation of the State party’s positive obligation to protect the authors’ right to enjoy their minority culture.” Accordingly, it found a violation of Article 27 ICCPR.

As a result of its findings concerning Articles 17 and 27 ICCPR, the HRC considered it not necessary to examine the authors’ remaining claims under article 24 (1) ICCPR.

Remedies:

Under Article 2 (3) (a) ICCPR, the HRC noted that the State was required to make full reparation to the authors, which meant providing adequate compensation; engaging in meaningful consultations with their communities to conduct needs assessments; continuing its adaptation measures and monitoring and reviewing the effectiveness of existing measures; and taking steps to prevent similar violations in the future. The Committee requested the State to provide it with information about the measures taken in this regard within 180 days.

Separate opinions:

Several HRC members appended individual opinions to the Views. These include:

  • The individual opinion by Committee Member Duncan Laki Muhumuza, arguing that there had been a violation of Article 6 ICCPR (the right to life);
  • The individual opinion by Committee Member Gentian Zyberi, concurring but arguing that the Committee had focused too heavily on adaptation measures, and should instead have more clearly linked the right under Article 27 ICCPR to mitigation measures;
  • The joint opinion by Committee Members Arif Bulkan, Marcia V. J. Kran and Vasilka Sancin (partially dissenting), who argued that there had been a violation of Article 6 ICCPR (the right to life). They argued in particular that the “real and foreseeable risk” standard employed by the majority interpreted Article 6 too restrictively, and was inappropriate here as it had been borrowed from the dissimilar context of its refugee cases (Teitiota v. New Zealand, the HRC’s first climate-induced displacement case).

Full decision:

The HRC’s Views are available here.

Further reading:

  • Maria Antonia Tigre, ‘U.N. Human Rights Committee finds that Australia is violating human rights obligations towards Torres Strait Islanders for climate inaction’, available here.
  • Verena Kahl, ‘Rising Before Sinking: The UN Human Rights Committee’s landmark decision in Daniel Billy et al. v. Australia,’ Verfassungsblog, 3 October 2022, available here.
  • Nicole Barrett and Aishani Gupta, ‘Why Did the UN Human Rights Committee Refuse Broader Protections for Climate Change Victims?’, Opinio Juris blog, 5 October 2022, available here.
  • Christina Voigt, ‘UNHRC is Turning up the Heat: Human Rights Violations Due to Inadequate Adaptation Action to Climate Change’, EJIL:Talk! Blog, 26 September 2022, available here.
  • Monica Feria-Tinta, ‘Torres Strait Islanders: United Nations Human Rights Committee Delivers Ground-Breaking Decision on Climate Change Impacts on Human Rights’, EJIL:Talk! Blog, 27 September 2022, available here.

Suggested citation:

UN Human Rights Committee, Daniel Billy et al. v. Australia, Communication No. 3624/2019, 22 September 2022, UN Doc. CCPR/C/135/D/3624/2019.

Categories
Imminent risk Indigenous peoples' rights International Court of Justice Paris Agreement Sea-level rise Vanuatu Vulnerability

Request for an ICJ Advisory Opinion on Climate Change

Summary:
On 29 March 2023, the United Nations General Assembly (UNGA) adopted a resultion requesting an advisory opinion from the International Court of Justice (ICJ) to clarify States’ international obligations concerning climate change. This resolution, Res. A/77/L.58, was prepared on the initiative of the Government of Vanuatu, and was adopted by consensus by the UNGA. The request is currently pending before the ICJ.

Background:
In September 2021, during the UN General Assembly’s annual meeting, the Prime Minister of the Republic of Vanuatu, Hon. Bob Loughman Weibur, announced that the country would build a coalition of States to seek an advisory opinion on climate change from the International Court of Justice (ICJ). The initiative received support from a large number of co-sponsoring states.

The proposal aims to contest “environmental devastation and large-scale violations of human rights for the most vulnerable”. Under the slogan of “bringing the world’s biggest problem to the world’s highest court”, this initative was originally spearheaded by a group of students from the University of the South Pacific. By July 2022, the alliance behind the initative included over 1500 civil society organisations in 130 countries. It also received the endorsement of the Organisation of African, Caribbean, and Pacific States (OACPS).

In July 2022, Vanuatu’s Minister of Climate Change, Hon. Silas Bule Melve, clarified the country’s ambitions for the advisory opinion. He stated that “[t]his is not a court case, and we do not seek to assign blame. But we do seek a credible way to bolster climate ambition moving forward to save the Paris Agreement and our blue planet”. The Republic’s legal team in this endeavor is led by Julian Aguon and Margaretha Wewerinke-Singh of the Pacific law firm Blue Ocean Law.

This approach follows an earlier initiative from 2012, by Palau and the Republic of the Marshall Islands, which did not manage to rally a majority of General Assembly members in suport of presenting a question concerning climate change to the ICJ.

Question put to the ICJ:
The resolution was adopted by the UN General Assembly on 29 March 2023. It decided, in accordance with Article 96 UN Charter, to request the ICJ, pursuant to Article 65 of its Statute, to render an advisory opinion on the following question:

“Having particular regard to the Charter of the United Nations, the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, the United Nations Framework Convention on Climate Change, the Paris Agreement, the United Nations Convention on the Law of the Sea, the duty of due diligence, the rights recognized in the Universal Declaration of Human Rights, the principle of prevention of significant harm to the environment and the duty to protect and preserve the marine environment,

(a) What are the obligations of States under international law to ensure the protection of the climate system and other parts of the environment from anthropogenic emissions of greenhouse gases for States and for present and future generations;

(b) What are the legal consequences under these obligations for States where they, by their acts and omissions, have caused significant harm to the climate system and other parts of the environment, with respect to:

(i) States, including, in particular, small island developing States, which due to their geographical circumstances and level of development, are injured or specially affected by or are particularly vulnerable to the adverse effects of climate change?

(ii) Peoples and individuals of the present and future generations affected by the adverse effects of climate change?”

Additional developments:
On 25 April 2023, the President of the ICJ made an Order organizing the proceedings and fixing time limits for written submissions by States and international organisations in this case.

In June 2023, the Court authorized the European Union, the Commission of Small Island States on Climate Change and International Law and the International Union for Conservation of Nature to participate in the proceedings.

Further reading:

  • For more on Vanuatu’s original initiative, see here.
  • For a summary and analysis of the initiative, see the post on our blog by Pranav Ganesan.
  • For analysis by Maria Antonia Tigre and Jorge Alejandro Carrillo Bañuelos on the Sabin Center’s Climate Law Blog, see here.

Last updated:
6 July 2023.

Categories
Adaptation Australia Domestic court Imminent risk Indigenous peoples' rights Sea-level rise Uncategorized Vulnerability

Pabai Pabai & Another v. Australia (Torres Strait Islander case)

Summary:
In a case modelled on the Dutch Urgenda case, a group of indigenous Torres Strait Islanders living on islands off Australia’s coast initiated domestic class action proceedings before the Federal court of Australia to claim that the Australian government has failed to protect them from climate change, leading to the progressive destruction of their ancestral islands.

This case was brought by two Torres Straits Islanders on behalf of the residents of Torres Strait Islands who have suffered loss and damage due to Australia’s conduct from about 1985. The claim categorically frames the harms allegedly suffered by the group and the risks they face as being caused by Australia’s failure to exercise due care in protecting them from climate-related harms. Apart from sea level rise, extreme weather events, harm to marine ecosystems and increased disease risks, the plaintiffs allege that Australia’s conduct threatens the loss of their distinctive customary culture- Ailan Kastom, which entails a spiritual connection with their land and the practice of marine hunting and fishing.

Context:
In another, separate climate claim, a group of eight Torres Strait islanders took a Communication to the United Nations Human Rights Committee in 2019, alleging that Australia had violated the human rights of low-lying islanders because of its failure to take climate action. On 21 July 2022, the Human Rights Committee adopted its Views in this case, known as the Billy and Others v. Australia case.

Petitioners:
This case was brought by two First Nations leaders on behalf of the remote Torres Strait islands of Boigu and Saibai. They brought the case on their own behalf and “on behalf of all persons who at any time during the period from about 1985 and continuing, are of Torres Strait Islander descent and suffered loss and damage as a result of the conduct of the Respondent”.

Arguments made:
While their claim is essentially based on the Torres Strait Islanders native title rights under the Native Title Act 1993, the plaintiffs also draw upon a wider body of norms regarding the Torres Strait Islanders as well as the environment in and around the Torres Strait Islands, emanating from international law, domestic law and policy commitments.  

Based on scientific evidence, the plaintiffs argue that climate change is already threatening their native title rights and distinctive customary culture. They allege that, due to the progression of climate change and the increasing storms and rising sea levels that result from this, they face an increasing threat of floods and of rising salt concentrations in their soil. Some islands, they argue, could become uninhabitable if the global temperature rises to levels more than 1.5°C above pre-industrial levels. One of the plaintiffs noted that that his people have lived on the islands in question for over 65,000 years.

The plaintiffs allege that the Australian government owes a duty of care to Torres Strait Islanders. It must, in other words, take reasonable measures to protect them, their environment, their culture and their traditional way of life from the harms caused by climate change. Because current climate action and targets are not consistent with the best available climate science, they argue, this duty of care has been breached. They invoke the Torres Strait Treaty, which requires the Australian government to protect and preserve the marine environment in the region.

Relief sought:
The plaintiffs seek declarations that Australia owes a duty of care to the Torres Strait Islanders which requires reasonable protective measures aimed at the Islanders, their traditional way of life and the marine environment; and that Australia has breached this duty. They further request the court to order an injunction requiring Australia to implement both climate adaptation and mitigation measures that are consistent with best available science and the payment of compensation for loss and damage.

The plaintiffs seek both mitigation and adaptation measures and rely on the duty of care recognized in the Sharma case.

Fact-finding:
In 2023, representatives of the Federal Court traveled to the Torres Strait to collect evidence from members of the community.

A hearing of expert evidence is set to be held in this case on the premises of the Federal Court in Melbourne starting in late October 2023.  

Full text of the petition:
The case is pending before the Federal Court of Australia and all documents related to the proceedings can be found on the court’s website (click here).

Last updated:
1 August 2023

Categories
Business responsibility Children and young people Domestic court Emissions reductions/mitigation Extreme poverty Gender / women-led Indigenous peoples' rights Right to a healthy environment Right to health Right to housing Right to life Right to subsistence/food Right to water Self-determination The Philippines Vulnerability

Greenpeace Southeast Asia and others v. the Carbon Majors

Summary:
This case was brought before the Philippines’ Commission on Human Rights (CHR) by 12 organisations and 20 individuals, as well as over a thousand Filipino citizens who expressed their support for the case through a petition, against the so-called ‘carbon majors’, i.e. high-emitting multinational and state-owned producers of natural gas, crude oil, coal and cement, including BP, Shell and Chevron. The applicants based their case on research indicating that these ‘carbon majors’ are responsible for a large percentage of global greenhouse gas emissions. Citing the Philippines’ high degree of vulnerability to the effects of climate change, the applicants alleged violations of the rights to life, health, food, water, sanitation, adequate housing, and self-determination. They also specifically invoked the rights of vulnerable groups, peoples and communities, including women, children, people living with disabilities, those living in extreme poverty, indigenous peoples, and displaced persons. They invoked also the right to development, labor rights, and the right to ‘a balanced and healthful ecology’. This petition was brought after a number particularly destructive typhoons that affected the Philippines, including Typhoon Haiyan.

As a result of the petition, the CHR began a dialogical and consultative process, called the National Inquiry on Climate Change (NICC). This process aims to determine the impact of climate change on the human rights of the Filipino people, as well as determining whether the Carbon Majors are responsible for climate change.

On 6 May 2022, the Human Rights Commission released the findings of its inquiry.

Responsible instance:
The case was brought before the Philippines’ Commission on Human Rights, which is an independent National Human Rights Institution (NHRI) under the 1987 Philippine Constitution, established on 5 May 1987 by Executive Order No. 163.

Date filed:
22 September 2015

Procedural steps in the case:
On 10 December 2015, the Commission announced during the Paris Climate Change Conference that it would take cognizance of the case.

On 21 July 2016, the Commission enjoined the respondent Carbon Majors to file their comments or answers to the petition within forty-five days. Out of the 47 respondents summoned, 15 submitted a response. Thirteen amicus curiae briefs were received. The applicants filed a reply, to which seven of the carbon majors filed a rejoinder.

Beginning July and November 2017, the Commission conducted community visits and dialogues to select climate impacted areas.

On 11 December 2017, the parties held a first preliminary conference. The Commission used this opportunity to deny the respondents’ jurisdictional objections to the case. It asserted its authority to investigate the case and hold public hearings in 2018 in Manila, New York, and London.

In 2018, the Commission held six public hearings in the case.

Outcome of the NICC:
On 6 May 2022, the Human Rights Commission released the findings of its inquiry. In his introductory note, Commissioner Roberto Eugenio T. Cadiz outlined the lengths taken by the Commission to engage with the “carbon majors” over this case, and noted that corporate actors, and not just States, have an obligation to respect and uphold human rights under the UN Guiding Principles on Business and Human Rights (UNGP). He also noted the unprecedented nature of the claim, and the Commission’s own lack of resources in dealing with it. And he rejected the argument by the “carbon majors” that the Commission did not have territorial or subject matter jurisdiction to deal with the case, noting the interrelated nature of all human rights and the impact on the people of the Philippines.

In its report, the Commission began by reviewing the best available scientific knowledge on climate change. It set out, “as established by peer-reviewed science, that climate change is real and happening on a global scale”, and that it is anthropogenic, i.e. caused by human activity. It then set out that climate change is a human rights issue, noting its adverse impacts on human rights both internationally and in the Philippines. It focused particularly on impacts concerning the right to life, the right to health, the right to food security, the right to water and sanitation, the right to livelihood, the right to adequate housing, the right to the preservation of culture, the right to self-determination and to development, and the right to equality and non-discrimination, focusing on the rights of women, children, indigenous peoples, older persons, people living in poverty, LGBTQIA+ rights. It also noted the impacts on the right to a safe, clean, healthy and sustainable environment and on the rights of future generations and intergenerational equity.

After considering the duties of States to protect human rights, as the primary duty-bearers of human rights law, the Commission found that these rights also include extraterritorial obligations, and that while a balance between sovereignty and human rights must be sought, “States’ duty to protect is not confined to territorial jurisdiction”. It relied on international environmental law to identify the concrete procedural and substantive obligations on States in the context of climate change, and their obligation to protect vulnerable sectors against discrimination.

The Commission considered that the refusal of governments to engage in meaningful mitigation action regarding climate change constitutes a human rights violation. It held that “[t]he pursuit of the State obligation to mitigate climate change cannot just be framed as aspirational, where the standard of fulfillment is vague and the timeline is uncertain. Concrete metrics must be set against which States may be held accountable. Failing this, States enable the human rights of their citizens to be harmed, which equates to a violation of their duty to protect human rights” (p. 87). The absence of meaningful action to address global warming, it held, suffices in this regard; these obligations of States include an obligation to regulate corporate activities, and to establish a policy environment that discourages reliance on fossil fuels.

The Commission then turned to business responsibilities, noting that “a State’s failure to perform [its duty to enact and enforce appropriate laws to ensure that corporate actors respect human rights] does not render business enterprises free from the responsibility of respecting human rights.” Referring to the UNGP framework and the UN Global Compact as well as the OECD Guidelines for Multinational Corporations, it applied these standards to the context of climate change. It found that:

  • The anthropogenic contributions of the “carbon majors” to climate change is quantifiable and substantial;
  • The “carbon majors” had early awareness, notice or knowledge of their products’ adverse impacts on the environment and climate systems;
  • The “carbon majors” engaged in willful obfuscation or obstruction to prevent meaningful climate action;
  • The “carbon majors” have the corporate responsibility to undertake human rights due diligence and provide remediation, including through every entity in their value chain;
  • And the UNGPs may be relied on under the law of the Philippines.

It went on to issue a number of recommendations. Concerning States, it called for climate justice, including a pooling of resources and sharing of skills, and urged governments to:

  • Undertake to discourage dependence on fossil fuels, including by phasing out all coal power fossil fuel subsidies and other incentives;
  • To collaborate on innovative climate action and guarantee the enjoyment by all of the benefits of science and technology;
  • To cooperate towards the creation of a legally binding instrument to strengthen the implementation of the UNGPs, and provide redress to victims of corporate human rights impacts;
  • To concretize the responsibilities of corporate actors in the climate context;
  • To discourage anthropogenic contributions to climate change and compensate victims;
  • To ensure access to adaptation measures by all, as well as equality and non-discrimination in climate adaptation and mitigation measures;
  • And to ensure a just transition towards an environmentally sustainable economy;
  • As well as to fulfil climate finance commitments and devise new mechanisms for loss and damage from climate change-related events;
  • To adequately support and protect environmental defenders and climate activists;
  • To promote climate change awareness and education;
  • To include military operations and supply chains in carbon accounting;
  • And to strengthen shared efforts to conserve and restore forests and other terrestrial ecosystems.

The Commission also formulated concrete recommendations for the “carbon majors” themselves, urging them to:

  • Publicly disclose their due diligence and climate and human rights impact assessment results, and the measures taken in response thereto;
  • Desist from all activities that undermine the findings of climate science, including “climate denial propaganda” and lobbying activities;
  • Cease further exploration of new oil fields, keep fossil fuel reserves in the ground, and lead the just transition to clean energy;
  • Contribute to a green climate fund for the implementation of mitigation and adaptation measures;
  • And continually engage with experts, CSOs, and other stakeholders to assess and improve the corporate climate response through “a new chapter of cooperation towards a united front for climate action”.

Speaking directly to financial institutions and investors, the Commission noted their ability to “steer companies and industries towards a sustainable path by aligning lending and investment portfolios with targets set by science”. It considered that their role in financing sectors and projects that generate greenhouse gas emissions make them “similarly accountable for global warming”. Accordingly, they were urged to:

  • Refrain from financing fossil fuel related projects and instead direct capital towards green projects; and
  • Exert social, political and economic pressure on the fossil fuel industry to transition to clean energy by divesting financial instruments related to fossil fuels.

The Commission concluded by noting the role of UN institutions, NHRIs, and courts — reviewing examples of climate litigation such as the Urgenda or Leghari cases, noting that “even when courts do not rule in favor of the claimants, they still contribute to meaningful climate response through their elucidation of the law and the rights and obligations of the parties”. Similarly, NGOs, CSOs, the legal profession and individuals are recommended to champion human rights and continue engaging in strategic litigation to strengthen business and human rights norms, change policy, increase governments’ ambitions, and create precedents.

The Commission furthermore addressed the Philippines’ own lackluster record of climate action, making concrete recommendations to the government to, among other things, formulate a national action plan on business and human rights, declare a climate and environmental alert, and revisit its NDC under the Paris Agreement as well as implement coal moratoriums, transition to low-carbon transportation systems, implementing REDD+ measures and data building and reporting mechanisms, and create legislative change. It also recommended to the domestic judiciary to create rules of evidence for attributing climate change impacts and assessing damages, and take note of the anthropogenic nature of climate change.

Suggested citation:
Philippines Human Rights Commission, In Re: National Inquiry on the Impact of Climate Change on the Human Rights of the Filipino People and the Responsibility therefor, if any, of the ‘Carbon Majors’, case nr. CHR-NI-2016-0001, Report of 6 May 2022.

Further information:
The full text of the petition is available here.

The report of 6 May 2022 is available here.

A blogpost on the importance of the report by Annalisa Savaresi and Margaretha Wewerinke-Singh is available on the GNHRE blog.

For additional resources provided by the Commission, such as transcripts of hearings and evidence submitted, click here.