In September 2015, Greenpeace Southeast Asia, Philippine Rural Reconstruction Movement, and a number of other groups filed a petition with the Philippines Commission on Human Rights (Business & Human Rights Resource Centre, nd). The petition named the world’s largest 47 fossil fuel producers, known as the ‘Carbon Majors’ (www.carbonmajors.org), and called upon the Commission to investigate their role in human rights violations of Filipino people caused by the contributions of the Carbon Majors to the climate crisis. The Carbon Majors have been the targets of a remarkable surge in climate change liability claims, with the ‘likely catalyst’ for this surge being studies that have traced greenhouse gas emissions to corporate entities that produce fossil fuels (Varvastian and Kalunga, 2020: 339).

In December 2019, the Philippines Commission presented their initial report which concluded that the Carbon Majors and other corporations have a responsibility to protect human rights in the context of the climate emergency (Independent, 2019). In terms of jurisdiction, the Commission found that it had a ‘mandate to investigate’ (Republic of the Philippines Commission on Human Rights, 2019). This represented the first time that a government agency accepted, and took action on, a request for an investigation of the human rights responsibility of fossil fuel producers for climate change. The Final Report of the Commission, released in May 2022, considered the question of jurisdiction and admissibility of the petition (Republic of the Philippines Commission on Human Rights, 2022, 10).

Limited scholarship is available on the NHRIs or the Carbon Majors inquiry, particularly as the Commission has not yet released its final report. Macchi (2021) has argued that the final findings ‘might shed a light on the link between climate due diligence and [human rights due diligence], and could be taken into account in the elaboration of new regulatory instruments, as well as in future litigation’ (Macchi, 2021: 98).

This article critically analyses the decision of the Commission to investigate the Carbon Majors, and the potential implications of this decision. It first explains the petition brought by Filipino citizens and civil society to the Commission, as background. Second, the article presents the role of national human rights institutions generally, and particularly in relation to their powers to investigate. Next, it examines a number of relevant provisions under international law, including existing and emerging international law relevant to human rights jurisdiction (or the mandate to investigate).  Then the article examines the decision by the Commission to the Carbon Majors and their contribution to the climate crisis and associated rights violations in the Philippines. Finally, the article briefly considers the recent decision in Milieudefensie et al v Royal Dutch Shell plc and its implications for the Philippines investigation.

A considerable body of international law and academic literature considers the application of human rights law to the climate crisis (see, for example, Yoshida and Setzer, 2020; Toussaint and Blanco, 2020). Most significantly, the Preamble to the 2015 Paris Agreement provides that parties ‘should, when taking action to address climate change, respect, promote and consider their respective obligations on human rights.’ This article does not provide an analysis of that law in terms of the application of human rights law to the climate crisis, except to the extent that it is relevant to the issue of establishing the human rights jurisdiction, or a mandate to investigate, of national human rights institutions (NHRIs).

A number of the Carbon Majors provided submissions arguing the Commission had no jurisdiction to investigate their role in climate change or its impact on Filipino people. These submissions are critically analysed within the context of existing and emerging international law. The article examines the substantial support in international law for the approach adopted by the Commission in asserting a mandate to investigate. While the decision is groundbreaking, it is an approach that other NHRIs may follow.

Author:  Iman Prihandono

Full Article may be accessed at:  http://ssrn.com/abstract=4263191