National Inquiry on Climate Change, Commission on Human Rights of the Philippines

January 4, 2019

By Atty Roberto Eugenio T Cadiz, Chair of the National Inquiry on Climate Change, Commission on Human Rights of the Philippines

The Commission on Human Rights of the Philippines is currently conducting a National Inquiry on Climate Change (NICC) to determine the impact of climate change on the human rights of the Filipino people and if the top fossil fuel producers of the world, or the so-called Carbon Majors, are fueling climate change.The cross-examining and investigative process which the Commission has embarked on may interest other national human rights institutions in the handling of human rights cases with trans-boundary character.

The NICC process was recently shared during a consultative workshop in Bangkok, Thailand on human rights and its cross-border effects organized by the Raoul Wallenberg Institute of Human Rights and Humanitarian Law.  Described as a dialogical, rather than adversarial process, the NICC is also contributing to a global dialogue on climate change, recognizing the trans-boundary character of the issue. From around the globe, the Commission received amicus briefs along with other submissions from advocates, legal and scientific experts, and the academe on the various issues concerning the case.

Previous to the filing of the climate change petition before the Philippine Commission, various parties filed cases before regular courts in different jurisdictions in other countries, attempting to link climate change to the activities of fossil fuel producers and the failure of governments to regulate them.  These efforts have so far failed to establish judicial consensus on the matter.  Thus, attempts were made to explore non-judicial mechanisms for addressing the issue, such as framing climate change as a human rights case before a human rights institution.

In 2005, the Inuit people first attempted to establish a nexus between climate change and human rights in a case filed before the Inter-American Commission on Human Rights, a mechanism under the Organization of American States.  The Inter-American Commission however refused to consider the case, holding that “(the) information provided by the (Inuits) does not enable (the commission) to determine whether the alleged facts would tend to characterize a violation of rights protected by the American Declaration.”

The Philippine petition filed before the Commission in 2015 was the second attempt to cast climate change as a human rights issue. The theory of petitioners’ case is simple: Climate change adversely impacts on the human rights of the Filipino people and the top fossil fuel producers of the world contributed, and knowingly continue to contribute, to this phenomenon.  An average of 23 typhoons enter the Philippines and in November 2013, typhoon Yolanda (Haiyan), one of the strongest typhoons globally in recorded history made landfall in eastern Visayas in central Philippines, and left 6,000 people dead, around PhP 4.55 billion worth of infrastructure destroyed, hundreds of thousands of families homeless and livelihoods lost….

The NICC operates on the principle of persuasion. In lieu of summons, the Commission issued invitations to the parties to participate in what is described as a “dialogue” on climate change.  With or without the participation of the respondents, the Commission is determined to proceed, as it has proceeded, with its inquiry, in respect of its constitutional mandate to investigate allegations of violations of human rights of the Filipino people. The decision to hear the petition does not mean that the Commission accepts the position of the petitioners. The petitioners still need to prove their allegations in a proceeding that will be transparent and respectful of the principles of due process.

Some of the respondents earlier asked the Commission to dismiss the petition, arguing that the Philippine Constitution only allowed the Commission to investigate cases involving civil and political rights. It was pointed out that the petition did allege violations of civil and political rights and all human rights are inter-related, inter-dependent, and indivisible. Thus, one cannot consider civil and political rights separately from economic, social, and cultural rights.

Unlike courts which are largely governed by precedents, the challenge to national human rights institutions is to test boundaries and create new paths, to be bold and creative instead of timid and docile, to be more idealistic and less pragmatic, to promote soft laws into becoming hard laws, to be able to see beyond legal technicalities and establish guiding principles that can later become binding treaties – in sum, to set the bar of human rights protection to higher standards.

The Philippine Commission on Human Rights is infusing a global dimension into its inquiry by inviting stakeholders from around the globe to participate. Foreign nationals have testified in Manila before the Commission’s inquiry panel. It is also going to New York and London, in collaboration with the New York City Bar Association and the London School of Economics respectively, to consider the opinions of experts and academics.

The hopes are that the NICC process can help establish clear mechanisms and processes for hearing human rights victims especially with regard to trans-boundary harm, clarify standards for corporate reporting of their activities and help identify basic rights and duties relative to climate change, and maintain its focus on the substantive aspects of the climate change dialogue and not be lost on technical rules concerning territorial or enforcement jurisdiction. Most important to the inquiry is the fairness and inclusivity of the process and that credible evidence support the findings and recommendations.

For updates and stories on the NICC, please visit the NICC portal in the ESSC website.
THE PETITION

The National Inquiry on Climate Change (NICC) was created in response to a petition filed by citizens of the Philippines with the aid of several Non-Government Organizations requesting that the Philippine Commission on Human Rights (CHR) investigate the responsibility of the Carbon Majors for human rights violations or threats of violations resulting from the impacts of climate change.

 The Carbon Majors are 47 oil, gas, and cement companies whose activities have been studied as the largest contributors of CO2 methane emissions since the industrial revolution (Heede 2014).

According to Commissioner Roberto Cadiz, chair of the Inquiry, the process would be a dialogue and not an investigation to determine guilt or innocence. As a dialogue, the inquiry provides the Carbon Majors an opportunity to be heard and voice their side of the argument to provide a mutual resolution for all parties.  Read the petition here.

THE RESPONDENTS

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RESOURCES

Understanding Human Rights and Climate Change:  Climate change impacts, directly and indirectly, an array of internationally guaranteed human rights. States (duty-bearers) have an affirmative obligation to take effective measures to prevent and redress these climate impacts, and therefore, to mitigate climate change, and to ensure that all human beings (rights-holders) have the necessary capacity to adapt to the climate crisis. This was a submission of the Office of the High Commissioner for Human Rights to the 21st Conference of the Parties to the United Nations Framework Convention on Climate Change.

Joint Summary of the Amicus Curiae: The following summarizes the amicus curiae briefs and submissions filed in Support of Petitioners Greenpeace Southeast Asia and the Philippine Rural Reconstruction Movement’s Petition Requesting Investigation of the responsibility of the Carbon Majors for human rights violations and threats of violations resulting from the impacts of climate change to the Commission on the Human Rights of the Philippines filed in November 2016. It also contains relevant updates.

UN Guiding Principles on Business and Human Rights

UN Framework Principles on Human Rights and the Environment 

Joint Summary of the Amicus Curiae: The following summarizes the amicus curiae briefs and submissions filed in Support of Petitioners Greenpeace Southeast Asia and the Philippine Rural Reconstruction Movement’s Petition Requesting Investigation of the responsibility of the Carbon Majors for human rights violations and threats of violations resulting from the impacts of climate change to the Commission on the Human Rights of the Philippines filed in November 2016. It also contains relevant updates.

Tracing anthropogenic carbon dioxide and methane emissions to fossil fuel and cement producers, 1854–2010: This paper presents a quantitative analysis of the historic fossil fuel and cement production records of the 50 leading investor-owned, 31 state-owned, and 9 nation-state producers of oil, natural gas, coal, and cement from as early as 1854 to 2010..

Smoke and fumes: The Legal and Evidentiary Basis for Holding Big Oil Accountable for the Climate Crisis: This report presents a comprehensive synthesis of the available evidence on what the oil industry knew about climate science, when they knew it, and what they did with the information. It combines that synthesis with an update on the latest developments in accountability research and science, which have dramatically improved the ability to identify the impacts of climate change on individuals and communities, the corporate actors that contributed to those impacts, and the nature of their contributions. The report presents this evidence in the context of the core elements of legal responsibility in tort and human rights law. It concludes that oil industry actors had early knowledge of climate risks and important opportunities to act on those risks, but repeatedly failed to do so. Those failures give raise to potential legal responsibilities under an array of legal theories.

A Crack in the Shell: New Documents Expose a Hidden Climate History: CIEL’s analysis of a massive new trove of Shell internal documents unearthed by Dutch journalist Jelmer Mommers shows the global oil giant understood and acted on climate science while publicly sowing doubt as to its validity and fighting its regulation. The analysis details a troubling pattern in Shell’s behavior: making declarations about the dangers of climate change while working with other companies to oppose climate action, including by spreading misinformation, then leaving after the damage has already been done.

Assessing ExxonMobil’s climate change communications (1977–2014): This paper assesses whether ExxonMobil Corporation has in the past misled the general public about climate change. It presents an empirical document-by-document textual content analysis and comparison of 187 climate change communications from ExxonMobil, including peer-reviewed and non-peer-reviewed publications, internal company documents, and paid, editorial-style advertisements (‘advertorials’) in The New York Times

The rise in global atmospheric CO2, surface temperature, and sea level from emissions traced to major carbon producers: This study lays the groundwork for tracing emissions sourced from industrial carbon producers to specific climate impacts and furthers scientific and policy consideration of their historical responsibilities for climate change.

Extreme weather event attribution science and climate change litigation: an essential step in the causal chain?: As climate-related loss and damage mount, there is growing interest in the role of law in dealing with the complex and multi-scalar problem of climate change. This article builds on a shorter piece entitled ‘Acts of God, human influence and litigation’ published by the authors in Nature Geoscience in August 2017. It is an interdisciplinary and cross-jurisdictional analysis of the emerging science of extreme weather event attribution (which analyses the human impact on extreme weather events), and the implications this new science may have for the law, litigation and the scope of the duty of care of a range of actors.

Inuit Petition Inter-American Commission On Human Rights To Oppose Climate Change Caused By The United States Of America: Ms. Sheila Watt-Cloutier, the elected Chair of the Inuit Circumpolar Conference (ICC), submitted a petition to the Washington DC-based Inter-American Commission on Human Rights seeking relief from violations of the human rights of Inuit resulting from global warming caused by greenhouse gas emissions from the United States of America.

Petition To The Inter-American Commission on Human Rights Seeking Relief From Violations Resulting from Global Warming Caused By Acts and Omissions of the United States: Sheila Watt-Cloutier, an Inuk woman and Chair of the Inuit Circumpolar Conference filed a petition to the Inter-American Commission on Human Rights (IACHR) seeking relief from human rights violations resulting from the impacts of climate change caused by acts and omissions of the United States. Petitioner requests the Commission to recommend that the United States adopt mandatory measures to limits its greenhouse gas (GHG) emissions, consider the impacts of GHG emissions on the Arctic in evaluating all major government actions, establish and implement a plan to protect Inuit culture and resources and provide assistance necessary for Inuit to adapt to the impacts of climate change that cannot be avoided.

The ICJ and other groups call States to join multilateral negotiations of a UN treaty on business and human rights: The groups called all States to take up the opportunity to strengthen a multilateral approach the issue of business and human rights by joining the intergovernmental process to establish a legally binding instrument in this field.

Anthropogenic influences on major tropical cyclone events: Relative to pre-industrial conditions, climate change so far has enhanced the average and extreme rainfall of hurricanes Katrina, Irma and Maria, but did not change tropical cyclone wind-speed intensity. In addition, future anthropogenic warming would robustly increase the wind speed and rainfall of 11 of 13 intense tropical cyclones (of 15 events sampled globally).

[INFOGRAPHIC] The Long Tale of Exxon and Climate Change: In the late 1970s, Exxon staked out a position at the forefront of climate science, but in the ensuing decades, the company migrated to the leading edge of denial. Exxon’s views and efforts on this critical issue–and how they fit into the company’s performance and the global perspective on climate change–are detailed in this timeline.

How fossil fuel companies responded to decades of warnings on global warmingKnowledge on the catastrophic effects of increased carbon dioxide (CO2) levels in the atmosphere has been around as early as the 1800s, and the top COemitters were even warned by their own scientists of the possible effects of these emissions to the climate.

However, along with the continuing research, warnings, and global initiatives to reduce the onset of global warming, there were also consistent campaigns from fossil fuel companies to spread doubt and denial on the role of man-made greenhouse gases to climate change, a timeline of which is illustrated here.

Shell Knew Fossil Fuels Created Climate Change Risks Back in 1980s, Internal Documents Show: A trove of documents shows the oil company’s scientists urged its leaders to heed the warnings. That could now play into lawsuits over global warming.

Fossil Fuels on Trial: Where the Major Climate Change Lawsuits Stand TodaySome of the biggest oil and gas companies are embroiled in legal disputes with cities, states and children over the industry’s role in global warming.

An investor enquiry: how much big oil spends on climate lobbyingInvestors are interested in the use of shareholder funds by corporations to delay and obstruct climate legislation. So far in 2016 alone, there have been over 15 shareholder resolutions filed by investors in the US with fossil fuel companies on the issue of influence over climate policy. Influence Map attempts to gain an order of magnitude estimate of a few, key representative oil and gas companies and trade associations to give investors and and other interested parties a feel for the amounts of shareholder funds being used for this purpose. Influence Map finds, estimating conservatively, that these five entities spent almost $115m per year combined on obstructive climate influencing activites, with the bulk by the American Petroleum Institute ($65m), ExxonMobil ($27m) and Shell ($22m).

Understanding Human Rights and Climate Change:  Climate change impacts, directly and indirectly, an array of internationally guaranteed human rights. States (duty-bearers) have an affirmative obligation to take effective measures to prevent and redress these climate impacts, and therefore, to mitigate climate change, and to ensure that all human beings (rights-holders) have the necessary capacity to adapt to the climate crisis. This was a submission of the Office of the High Commissioner for Human Rights to the 21st Conference of the Parties to the United Nations Framework Convention on Climate Change.

Joint Summary of the Amicus Curiae: The following summarizes the amicus curiae briefs and submissions filed in Support of Petitioners Greenpeace Southeast Asia and the Philippine Rural Reconstruction Movement’s Petition Requesting Investigation of the responsibility of the Carbon Majors for human rights violations and threats of violations resulting from the impacts of climate change to the Commission on the Human Rights of the Philippines filed in November 2016. It also contains relevant updates.

UN Guiding Principles on Business and Human Rights

UN Framework Principles on Human Rights and the Environment