by Atty. Alaya de Leon and Atty. Niner Guiao, Parabukas
The latest Synthesis Report of the Intergovernmental Panel on Climate Change is unequivocal that human-induced climate change has already resulted in “widespread adverse impacts and related losses and damages to nature and people,” particularly the most vulnerable. These impacts will continue, and become even more “widespread and pronounced,” unless urgent action is taken to drastically reduce greenhouse gas emissions.
The concept of climate justice recognizes the different effects climate change has on various populations, and notes that the most vulnerable and underprivileged communities often suffer the most from its adverse impacts. These extend not only to safety and security, but to other social, economic, and cross-cutting effects.
Litigation and conflict resolution modes and procedures are valuable tools in advocating for, and attaining, climate justice. These have seen success in many countries, and it has been observed that conditions may be ripe for similar efforts in the Philippines. Some of these efforts will be the focus of this article.
Climate Change and Climate Justice
Climate justice emphasizes that vulnerable and underprivileged groups are often more harshly affected by climate change than those who bear greater responsibility for its causes, and calls for action to remedy this.
A number of international legal instruments and platforms attempt to address climate justice. The principle of common but differentiated responsibilities and respective capabilities, for instance, is included among the overarching principles of the United Nations Framework Convention on Climate Change (UNFCCC). It effectively states that while everyone must take action to address climate change, not all these actions must be the same. The respective capabilities and circumstances of countries that are Parties to the UNFCCC will determine what kind of actions can and should be taken.
Climate justice is also a foundational basis of the Loss and Damage workstream of the UNFCCC. It addresses losses and damages arising from the adverse effects of climate change, and for which climate change adaptation – actions that increase resilience and reduce the vulnerability of communities – is no longer a sufficient response. These include both economic and non-economic losses and damages caused by extreme weather, and slow-onset events like sea level rise, ocean acidification, and increasing temperatures. At the most recent UNFCCC Conference of Parties in Egypt in 2022, a new fund for Loss and Damage was established, which is meant to provide support to developing countries particularly vulnerable to the adverse effects of climate change through the mobilization of new and additional resources.
Climate justice was also advanced by the recent UN General Assembly (UNGA) adopting a landmark Resolution seeking an Advisory Opinion from the International Court of Justice on climate change, including questions around state accountability. This was the result of a years-long campaign initiated by students from Pacific Islands nations, which was eventually carried by Vanuatu, and co-sponsored by more than 100 other countries before the UNGA.
The Commission on Human Rights National Inquiry on Climate Change
The Philippines has consistently been ranked among the most climate-vulnerable countries in the world. It is also widely recognized that many groups and communities in the country have suffered adverse impacts, losses, and damages – and indeed injustice – from the effects of climate change, despite having little to no contribution to its causes.
However, despite a rich environmental legal ecosystem, climate change litigation has not been fully explored in the country. More cases have focused on the enforcement of existing environmental laws and regulations, particularly around large-scale extractives and development projects. Climate justice advocates also face challenges around establishing causation and exacting accountability for climate impacts, further compounded by the violence and threats faced by environmental frontliners and human rights defenders on the ground.
Nevertheless, in September 2015, a group of environmental organizations and advocates filed a petition before the Commission on Human Rights (CHR) requesting an investigation of the responsibility of fifty “Carbon Majors” for human rights violations or threats of violations resulting from the impacts of climate change. Carbon Majors are corporations, such as Chevron, ExxonMobil and Royal Dutch Shell, who represent the largest production of fossil fuels and cement in the world, through which they are alleged to have contributed 64.3% of the global industrial carbon dioxide and methane in the atmosphere between 1751 and 2013. This was the first action on climate change accountability brought before a National Human Rights Institution.
The CHR National Inquiry on Climate Change (NICC) was conducted in response to this petition, which concluded with the release of a report in May 2022. The NICC Report clearly framed climate change as a human rights issue, as it threatens the rights to life, health, food security and livelihoods, in the present and for future generations. It likewise recognized that vulnerable sectors, such as women, LGBTQIA+ persons, children, indigenous peoples, and people living in poverty bear the brunt of these impacts.
Significantly, the CHR agreed that the Carbon Majors had known of these harms since the 1930s but had “engaged in the willful obfuscation of climate science” to sow doubt about climate change and its effects. The CHR drew from the UN Guiding Principles on Business and Human Rights: while not legally binding in the sense of “hard” law, these principles established a “standard of practice” for businesses, which included their responsibilities to undertake human rights due diligence and provide remediation.
The CHR considered these standards as general principles of international law which are automatically incorporated into the Philippine legal system.
The CHR then made several recommendations addressed to government bodies and businesses. The Carbon Majors and other Carbon-intensive industries were urged to disclose their environmental and human rights impacts, respect scientific findings, and undertake efforts to reduce emissions, support adaptation, and strengthen engagement with stakeholders. Notably, the CHR’s recommendations to the courts highlight climate change litigation as a tool to increase climate change mitigation targets and enforce international climate change obligations, especially when legislation has not yet caught up to scientific projections and advice. They were asked to take judicial notice of human-induced climate change and its impacts, and work toward evidentiary rules on attribution and assessment of damages.
Even without a legally- binding finding of accountability, the persuasive value of the NICC Report cannot be understated. Especially when considered alongside a forthcoming ICJ Advisory Opinion on climate change, it can be expected to provide a legal avenue for future climate and human rights litigation both against States and non-State actors.
Conflict Resolution on Climate Justice Issues
There have been recent efforts to enact more progressive and responsive climate policies in the Philippines. In June 2022, the House of Representatives adopted Resolution 2605, which expressed support for the establishment of an accountability mechanism for climate change and a national funding mechanism for Loss and Damage, while also seeking climate justice from corporations and developed countries.
Nevertheless, in the absence of new rules and legislation, what might climate change litigation and conflict resolution look like in the Philippines?
Novel remedies under Philippine law include actions for a Writ of Kalikasan and/ or a Writ of Continuing Mandamus under the 2010 Rules of Procedure for Environmental Cases. Climate change impacts satisfy the requirement of “environmental damage of such magnitude as to prejudice the life, health or property of inhabitants in two or more cities or provinces,” and the precautionary principle can be cited to contemplate future impacts, especially when there are available science and research-based projections.
A Writ of Kalikasan could potentially compel the Carbon Majors and other fossil fuel-intensive industries to permanently discontinue high-emission activities, and require periodic disclosure of their climate change impacts. Through a Writ of Continuing Mandamus, the State can also be directed to act on several recommendations in the CHR Report, including reviewing national climate change targets, transitioning to low-carbon systems, and formulating a National Action Plan on Business and Human Rights.
However, to award these Writs, a court has to make a definite finding of unlawful action or inaction, by the State and the corporations involved. The CHR’s finding that the Carbon Majors are “morally and legally liable” for climate change impacts – having known of these but refusing to act – may be persuasive but will likely be hotly contested. Moreover, while the writs may be used to increase ambition in prospective climate actions and avoid future impacts, this accountability does not extend to awarding monetary compensation for damage already suffered.
The CHR’s reference to the UN Guiding Principles on Business and Human Rights also introduces several “soft” law options. Most relevant of these is recourse to the Working Group on Business and Human Rights (UNWG), which was established by the UN Human Rights Council in 2011. The UNWG provides a communications procedure by which it can receive information on alleged human rights abuses or violations by businesses, and if it deems appropriate, it may intervene directly with States, businesses, and stakeholders to open dialogue, encourage investigation and seek redress where necessary.
The CHR report clearly framed climate change as an existential issue that threatens multiple human rights. It documented impacts of extreme events on communities and individuals and noted extensive scientific and expert evidence on how these effects will continue and escalate. As such, it could be a valuable basis for potential climate litigation.
The above provides merely an introduction to climate justice and its many dimensions, how it is and/or can be localized in the Philippines, and the existing and potential role of conflict resolution approaches as pathways to achieving climate justice objectives. It is an extremely ripe, and urgent, area of discourse and practice, especially with the increase in scientific certainty around the causes and effects of climate change, continuing to highlight inequality at various levels and thus the need to improve access to justice of the most vulnerable sectors and communities.