On 6 May, the Philippines’ Commission on Human Rights (CHR) officially released the National Inquiry on Climate Change (NICC) report. The seven-year inquiry, the first of its kind in the world, investigated if 47 fossil fuel corporations or “carbon majors” can be held liable for human rights violations related to the climate crisis.
Through its findings, the CHR effectively frames climate change as a human rights issue. While a global consensus on the anthropogenic nature of climate change has been established, it is important for this report to formally acknowledge and connect it to the other aspects of this issue.
The NICC report reveals that carbon majors not only emitted large amounts of greenhouse gases (GHGs) that triggered extreme climate change impacts; they also intentionally misinformed the public by blocking progress in climate science. It also shows how these corporations lobbied against the necessary just transition from fossil fuels to renewable energy.
These actions have affected the ability of communities, especially the most vulnerable peoples, to exercise their rights in the pursuit of a better life. An example cited in the report includes how super-typhoon Haiyan has gravely affected Filipinos in terms of their right to life, the most fundamental of all human rights. Haiyan, which killed at least 6300 individuals, is one of the most infamous cases of loss and damage.
Another instance involves climate change impacts on the right to health, recognized both under the Philippine Constitution and the Universal Declaration of Human Rights. Among threats to human health linked to shifts in weather patterns include dengue, heat-related illnesses, and mental health problems arising from extreme events like Haiyan.
How it connects to loss and damage
While the inquiry initially focused on the culpability of corporations, it eventually expanded to determine the roles and responsibilities of governments in protecting the rights of its citizens against the climate crisis. Among its key findings is the duty of States to address the climate crisis, arising mainly from international law, which includes treaties such as the Paris Agreement.
In line with these findings, the CHR endorses that governments fulfill financial commitments and develop new mechanisms to address loss and damage from climate change impacts. This includes the USD100 billion by 2020 that developed nations committed to aid developing countries in their mitigation and adaptation programs, which in effect would help them avoid loss and damage ; this goal has yet to be achieved as of the 2021 Glasgow climate negotiations (COP26).
The CHR recommends the establishment of a separate finance mechanism for loss and damage to assist highly-vulnerable nations. At COP26, developing countries pushed for the creation of said mechanism. Although this was rejected by developed nations, this issue figures to be one of the main agendas for the upcoming climate talks in Egypt.
Despite this, momentum for loss and damage finance has been created through this push and the financial pledges of the governments of Scotland and Wallonia, Belgium and several philanthropic organizations for victims of climate-related disasters. The NICC report provides a boost to turn this momentum into a long-overdue reality.
Yet this is not the only opportunity presented for securing resources in averting or reducing loss and damage . Aside from the global financial facility, the CHR further recommends that governments should establish legal frameworks to compensate those affected most by climate change impacts. Revenues can be sourced from carbon majors, with a framework allowing for fair, meaningful, and accessible compensation.
Part of establishing this framework is passing laws that impose legal liabilities for corporate-related human rights abuses. Legislatures worldwide should mandate the compliance of businesses with the UN Guiding Principles on Business and Human Rights, the accepted global standard for avoiding human rights violations linked to business actions. Formulated laws must be clear on jurisdiction over such cases, penalties and sanctions for proven violations, and reparations for the victims.
Another avenue for action is for potential claimants to file lawsuits against carbon majors. The CHR notes two key actions that courts should accomplish when working on such cases. The first is that they must recognize through judicial notice that the climate crisis is human-induced, to immediately dispel any arguments that could be used by carbon majors regarding the nature of this issue.
The second involves designing and implementing rules of evidence in attributing climate change impacts, and assessing loss and damage . It should be understood that event attribution is different from legal causation. The former does not aim to fully reconstruct how every part per million of GHG emitted led to a climate change impact that caused harm to a community, as this is highly improbable given the current state of available scientific methods.
Instead, event attribution concerns itself with establishing deviations of a natural event from historical averages in terms of intensity, frequency, or duration, and if they are consistent with what multiple climate modeling simulations indicate in terms of human influence.
While attribution science is advancing in recent years, any uncertainties related to its methodologies should not be used as an excuse to dismiss climate-related cases. After all, there is evidence that carbon majors have known about how their actions have been causing climate change since the 1960s, without the benefit of climate models being used today.
Evaluating event attributions based on traditional standards of legal causation only causes more climate injustices, including further loss and damage that could have been avoided otherwise.
Meaningful change against climate change requires existing political and legal procedures and systems to evolve to address existing and new challenges. The findings of the NICC report just unlocked many doors that allow such changes to happen, bringing the most vulnerable nations and peoples closer to achieving climate justice.