Scientific evidence has established beyond doubt that climate change needs to be addressed, and urgently. Global Insight assesses how civil society and strategic litigation are forcing corporations and governments to take long overdue action.

It’s less than a year since the Intergovernmental Panel on Climate Change (IPCC) delivered the news that nobody wanted to hear: temperatures are rising and time is already running out. The IPCC report called for ‘rapid, far-reaching and unprecedented changes’ to keep global warming to 1.5°C and curb climate change. Two days after the report came out, Mary Robinson, President of the Mary Robinson Foundation – Climate Justice and former UN Special Envoy for Climate Change, told Global Insight she hoped the report would be a ‘sufficient wake-up call for the world’.

Demands for urgent action have become ever more intense, from the highest echelons of the UN to the hundreds of thousands of schoolchildren in 110 countries going on strike. Meanwhile, there’s been wave after wave of civil disobedience and protest around the world, with notable civil society groups emerging, such as the gilets jaunes in France, Extinction Rebellion in the UK and the Collective Climate Justice group targeting Swiss banks in Zurich.

Courts worldwide have witnessed a swiftly rising tide of climate-related lawsuits. Yet business interests are still staunchly defended. This was all too evident when a Saudi-led group of oil-producing nations ensured that the IPCC report received little more than a cursory mention during the recent UN Climate Conference in Bonn.

It also says much about the thinking of governments that the IPCC’s recommendations, which include 6,000 scientific references by 91 authors and review editors across 40 countries, could be reduced to five paltry paragraphs during the climate talks in June. That same week, four Central European nations blocked a deal that would have committed all EU governments to reaching the IPCC’s ‘net zero’ emissions target by 2050.

Clearly the alarm bells are still not ringing loudly enough for some. ‘I would say unfortunately that the majority of the world’s countries are not responding adequately to the challenge that scientists laid down,’ says David Boyd, UN Special Rapporteur on human rights and the environment. ‘We can’t just continue tinkering. We need to really make some substantial and significant changes in the way we live, the way we produce energy, the way that we treat our world, the way we treat the world’s forests and the way we produce our food.’

Boyd points to another report, this time by the International Energy Agency, which outlines concerns that investment in low-carbon energy is ‘stalling’ and requires ‘a rapid boost’ to keep the goals of the Paris Agreement firmly in sight. ‘This is three years after the Paris Agreement and we’re still seeing more money being invested in fossil fuels than renewable energy,’ says Boyd. ‘That’s absolutely the opposite of the direction that we must head.’

Some communities have taken the issue into their own hands. In 2013, Typhoon Haiyan devastated the southern part of the Philippines, killing more than 6,000 people. Two years later, in 2015, Greenpeace Southeast Asia, alongside typhoon victims and concerned citizens, issued a complaint to the country’s national human rights institution, citing evidence that ‘human-induced climate change’ contributed to the deadly typhoon. They argue that 47 carbon majors should be ‘held accountable for violations or threats of violations of Filipinos’ rights... resulting from the adverse impacts of climate change’.

The Commission on Human Rights of the Philippines (CHR) launched a national inquiry the same year, marking the first time such a commission has taken on a case that frames climate change as a human rights issue.

Despite its name, the CHR does not have powers to investigate allegations of human rights violations. The Philippines’ Constitution permits the CHR to look only into potential infringements of civil and political rights. ‘We’ve said that human rights are integrated, they’re indivisible, that one cannot discuss or consider civil political rights without also looking into economic, social and cultural rights,’ says Commissioner Roberto Cadiz, who led the inquiry. ‘Besides, climate change involves the right to life where people die because of typhoons. That’s the most fundamental civil right.’

It was also important to Cadiz that the inquiry’s scope went beyond the Philippines. ‘We decided that the inquiry should be global because climate change is a global issue,’ he says. ‘In the first place, the petition alleged that the big contributors to climate change were the big companies – the so-called carbon majors – and most of them are not present in the Philippines. The sources – the contributors to climate change The CHR embarked on a ‘global dialogue’ and held 12 hearings in Manila, New York and London over a three-year period. There were witness statements from 26 communities and 52 experts. The 47 named carbon majors were invited to take part, but declined.

A spokesperson for Royal Dutch Shell, one of these companies, told Global Insight: ‘Shell has great respect for the Commission on Human Rights of the Philippines. However, the issues raised here fall outside the Commission’s mandate. Our position is that the mandate of the CHR does not extend to the environmental matters raised in this petition.’ A spokesperson for another, BP, declined to comment altogether on the process.

Cadiz and his team are analysing their findings and plan to publish a report in November, just in time for the next UN Climate Change Conference in Santiago in December. Jasper Teulings, General Counsel at Greenpeace, says the report could be hugely important in the global fight to bring accountability for climate change. ‘It could result in the first-ever legal finding on corporate responsibility for the climate crisis,’ he says. ‘And in so doing, lay the foundations for accountability in other forums. I think the potential impact of a case like this goes well beyond its national borders.’

Litigating for change

Yet, as the IPCC’s report has shown, there’s still a considerable way to go before some states and companies fully grasp the drastic measures that need to be taken. In the absence of legislative and corporate action, civil disobedience by groups such as Extinction Rebellion and the rising tide of litigation are being viewed as the most effective ways to force the urgent change required to protect the global environment.

In 2015, a case brought by the Urgenda Foundation in the Netherlands argued that the Dutch government has a legal duty to prevent climate change. In October 2018, the Court of Appeal in The Hague agreed with the District Court’s view that the government should reduce its greenhouse gas emissions by at least 25 per cent by the end of 2020.

‘We want the big players in the current energy system to transform in a way that is compatible with the Paris Agreement,’ he says. ‘That means do your proportionate share in keeping warming well below 2°C or preferably not above 1.5°C, which is the main goal of the Paris Agreement.’ Shell has until November to draft a response to the plaintiffs’ 250-page writ.

‘We agree that action is needed now on climate change, so we fully support the Paris Agreement and the need for society to transition to a lower-carbon future,’ a Shell spokesperson tells Global Insight. ‘We’re committed to playing our part, by addressing our own emissions and helping customers to reduce theirs. We will respond clearly and robustly to the details of the case in court, but we do not believe the courtroom is the right venue to address the global challenge of climate change.’

Lina Pimental Garcia, Senior Vice-Chair of the IBA Environment, Health and Safety Law Committee, says litigation may put pressure on certain industries to reduce emissions, but agrees this is only part of the solution. ‘The issue is much more complex and there are a lot more actions that can be performed than just reducing the emission of greenhouse gases, such as forest restoration programmes, that could very well be carried out by several companies,’ she says.

Of course, if corporations don’t change their ways and governments don’t legislate, others will feel compelled to act. One of the most striking aspects of the climate change debate over the past 18 months has been the engagement of civil society groups and particularly young people, both inside and outside the courtroom. While groups such as Extinction Rebellion and Collective Climate Justice Group have led significant civil disobedience in the UK, France and elsewhere, Swedish teenage climate activist Greta Thunberg has become the face of the global school walkouts. These have seen tens of thousands of schoolchildren take to the streets to demand that governments safeguard their future.

In April 2018, the Supreme Court of Colombia ruled in favour of a group of 25 children and youth, arguing that their constitutional right to a healthy environment was being violated by deforestation in the Amazon. This was a significant decision, not least because deforestation is the second-largest contributor to climate change, but a report by the World Resources Institute also concluded in 2018 that Colombia had the fourth-greatest loss of primary rainforest of any country in the world.

The Supreme Court ordered the government to comply with its international commitments to reduce deforestation to net zero by 2020. One year on, it’s still unclear what progress to date has been made to guarantee the country will reach these goals. However, Boyd says cases like this and the Urgenda claim are having an impact. ‘Their importance may actually be greater in the court of public opinion,’ he says. ‘They have drawn so much attention to this issue, with such authority and legitimacy, that I think it’s starting to turn the ship around in terms of convincing governments that actually, not only do they have a legal and moral obligation, but it’s in their political interests to accelerate the pace of climate action as well.’

The amount of climate-related litigation continues to grow fast. More than 1,300 legal actions have been launched across 28 jurisdictions since 1990, according to a report by he Grantham Institute and the London School of Economics. Teulings says the value in such cases lies in the fact that they encourage communities – young and old – to keep the pressure on governments to act. ‘It’s in the journey, because of the empowerment that’s happening for these impacted communities,’ he says. ‘It’s for the space that it creates for regulation; the signals these lawsuits send; the awareness that they raise. We have ample historical evidence, from the civil rights movement to the suffragette movement, that strategic litigation really can bring about change. And that’s why I’m a firm believer in that.’

Underneath the greenwash

While lawsuits continue to work their way through the courts worldwide, there are encouraging signs that the human rights and climate change nexus is being acknowledged at a supranational level.

In October 2018, the UN Human Rights Committee recognised the relationship between the right to life and environmental degradation and climate change. In April, the US government was asked to provide information on its policies and measures to protect the right to life from the adverse impacts of climate change. Lucy McKernan, the Geneva Representative of the Global Initiative for Economic, Social and Cultural Rights, says these moves mark a significant shift at the UN level. ‘It was a big jump for them to move into looking at issues like climate change,’ she says. ‘We will be encouraging the Committee to take mitigation measures to prevent and tackle the US on, for instance, the recent announcements on moving back to coal.’ Such moves and statements could also support efforts by low-lying islands that are most vulnerable to climate change to bring governments to account (see box: World first: small islands face ‘existential threat’).

Greenwashing – whereby PR claims about environmental credentials are used to distort the reality – is a practice normally associated with large corporations. This has been a prominent theme recently with oil companies coming in for criticism for their overblown claims regarding investment in renewable energy, for example. ‘I think there’s an opportunity for the US to try to skirt around it and really focus on adaptation because it’s easier for them to show the measures they’re [already] taking to protect life,’ says McKernan. ‘The other measures are more preventative and looking forward.’

At the UN level, Boyd is already working to address this issue. He will present a report at the next UN General Assembly that will put forward obligations on states to curb the activities of corporations in order to protect human rights from the impacts of climate change. ‘States have failed in their obligation to properly regulate these companies to reduce their emissions and to protect people,’ he says.

As the gilets jaunes movement in France has shown, where the onus is placed for addressing the climate crisis is important. Measures like carbon taxes that hit individuals already struggling with shrinking incomes and rising living costs have prompted civil disobedience. Boyd believes it’s up to states to ensure the burden of such policies does not fall solely on consumers: ‘We need states to step up to the plate and find ways of basically internalising the costs of these emissions that have been borne by society and should really be borne by these companies.’

In 2003, the World Health Organization established the Framework Convention on Tobacco Control, which contains specific provisions preventing tobacco companies from participating in developing public health policy. Boyd says a similarly drastic approach may be required to tackle the climate crisis. ‘Given their major role in causing climate change, given the duplicitous way that they’ve attempted to undermine the science of climate change, and given their lobbying efforts to block progress in tackling climate change, I think we need to consider doing something similar with the carbon majors,’ he says. ‘That is, excluding them from participating in the development of climate policy, energy policy and environmental policy.’

Teulings agrees that businesses, just as much as governments, must protect people from harm. ‘There is a duty to respect on the part of the corporations, which is of a less strict nature than the one that’s resting on governments, but it is there nonetheless,’ he says. ‘The longer they wait, the more they become part of the problem rather than the solution. All the fossil fuel companies… are facing a rapidly eroding social licence to operate and even exist. This is crucial for them to retain such huge influence over our national and international politics and regulation. They’re in serious danger of losing this influence.’

Ruth Green is a Multimedia Journalist at the IBA and can be contacted at ruth.green@int-bar.org