Why climate activists are turning to the law to take on fossil fuel companies

Guest post by Sophie Marjanac, Climate Lawyer for ClientEarth

Climate change and the way we fight it can often feel impersonal, like a problem for future generations.

Amid the drama of international climate politics and diplomacy, it can be easy to lose sight of the human voices central to the struggle against climate catastrophe.

In late August, Arthur Golong, a transgender community leader from Tacloban City, gave evidence before a hearing of the Philippines Commission on Human Rights.

The hearing was part of a landmark inquiry linking the actions of fossil fuel companies, and their contribution to climate change, to the resulting natural disasters and their impact on people’s human rights.

Arthur spoke about the devastating Typhoon Haiyan that struck the Philippines in 2013 and how she spent hours after the storm clutching a tree trunk in floodwaters to survive, losing her home and possessions in the meantime.

She also talked about the discrimination the LGBT community faced in the immediate aftermath of the disaster, with the distribution of aid prioritising heteronormative families.

Arthur is not alone. The United Nations acknowledges that climate change affects the enjoyment of many basic human rights.

Extreme events, such as natural disasters and crop failures, will exacerbate existing global inequality, stretching the resources of vulnerable states already struggling to provide for their citizens. For small island states losing land to rising seas, climate change affects the right to self-determination and culture.

In 2016, a group of Filipino campaigners joined environmental organisation Greenpeace in asking the Philippines’ Commission on Human Rights to investigate the responsibility of major fossil fuel companies for the impacts of climate change on the human rights of the Filipino people, in light of Typhoon Haiyan.

The commission has the power to make human rights recommendations to the nation’s congress. Although it cannot force fossil fuel companies to pay compensation, it will play an important role in defining human rights violations related to climate change.

Even if the case is unsuccessful, the process of hearing from experts and people affected by climate change, and amplifying their stories to a global audience – from Tacloban City to Manila, New York and London – will be incredibly powerful.

The commission agreed to conduct a national inquiry and has held hearings throughout 2018. Those being heard include survivors of Typhoon Haiyan and rural farmers giving their experience of climate change, alongside international legal experts including those from Human Rights Watch and the Center for International Environmental Law.

To date, none of the respondent companies to the petition have made an appearance or acknowledged the jurisdiction of the commission to investigate the complaint. Shell's management told shareholders at its annual general meeting last year that the company did not consider the national inquiry to be the correct forum to discuss climate change issues.

This position represents a missed opportunity, and demonstrates a misunderstanding of the responsibility multinational corporations have to respect human rights, as expressed under the United Nations Guiding Principles on Business and Human Rights.

It is increasingly recognised that major human rights treaties impose hard legal obligations on states to protect their citizens from the human rights impacts of climate change.

These obligations include substantive obligations to help citizens adapt to climate impacts, and procedural obligations that include continued participation in the Paris Agreement, the international treaty governing climate change.

Arguably, these treaties already impose requirements on states to mitigate their emissions to meet the Paris Agreement’s goal of keeping global warming to well below 2 degrees, and to pursue efforts to keep it to 1.5 degrees.

Recently, several United Nations Treaty Bodies have started directly linking human rights and climate change in periodic country reviews. Notably the Committee on Economic Social and Cultural rights last year expressed concern about Australia's continued promotion and use of coal in the energy sector.

Private actors also have  responsibilities. Although progress to draft and negotiate a binding international treaty on business and human rights has been slow, the responsibilities of private companies are already contained in the UN Guiding Principles on Business and Human Rights.

These principles set out a framework by which companies are required to protect and respect human rights, and remedy the negative effect of their operations and products on human rights.

Companies’ main responsibilities include conducting a human rights due diligence and providing access to a remedy for affected peoples where their operations and products cause or contribute to human rights harm.

Given the significant human rights impacts of climate change, the UN Guiding Principles should be applied to companies’ direct and indirect greenhouse gas emissions

To offer an effective remedy, fossil fuel companies need to explain to stakeholders how they will support and comply with the objectives of the internationally agreed climate change treaty, the Paris Agreement, and in particular its goals of keeping global temperature increase to well below two degrees.

Fossil fuel companies need to start seeing communities affected by climate change as a key stakeholder group in human rights due diligence. As major emitters, they will become the main target of scrutiny when human rights are impacted by severe environmental disturbances such as extreme weather events and ocean acidification, for example.

It is in the companies’ interest to make sure that the human rights impacts of climate change on communities are preventively assessed and addressed. They can do this by changing their business models in alignment with the goals of the Paris Agreement.

This should not be a complex task for companies, many of whom already publically support the Paris Agreement's goals, and are already coming under pressure from shareholders and climate campaigners alike to transition to ensure these goals are reached.

If fossil fuel companies do not act rapidly, we can only expect a world in which human rights are severely affected, and more people like Arthur will have no other avenue than turning against fossil fuel companies to seek remedy for the harm suffered