Last October, over 35 National Human Rights Institutions (NHRIs) from around the world met in Geneva to discuss their role in preventing business-related human rights violations and in facilitating access to justice and remedy for victims of such violations.
If I were to list every case where corporations have caused environmental harm and human rights abuses, I would, without a doubt, still be listing them well into next year. From mining companies and garment factories to the Carbon Majors, transnational corporations have an incriminating track record of environmental destruction and human rights violations. With ever-more corporate-friendly trade agreements and convoluted supply chains spanning the globe, it’s more important than ever for people and institutions to do their part to hold these corporations accountable. NHRIs have a role in this as well.
What are NHRIs?
Broadly speaking, National Human Rights Institutions (NHRIs) are independent bodies tasked with protecting and promoting human rights in their respective countries. In practice, this can include mediating conflicts, monitoring public and private activities, educating and training people about human rights, and advising governments on effective human rights protections. Currently, over 100 countries have an NHRI, all of which are connected by a global network called the Global Alliance of National Human Rights Institutions (GANHRI).
While NHRIs and their mandates come in different shapes and forms (i.e., Commissions, Institutes, or Ombuds Institutions), they all must fulfill the six basic standards set out in the Paris Principles to receive the grade of “A status.” According to GANHRI, only about 80 NHRIs have successfully achieved an “A.” Nevertheless, every NHRI, regardless of its status, tends to be the most knowledgeable institutional resource on the human rights situation in its respective country. This makes NHRIs well positioned to understand and assess when companies’ activities are not only damaging the environment, but also violating human rights. In fact, the intersection of business and human rights has kept NHRIs, and especially GANHRI, busy for some time. For example, in 2013, GANHRI published a guidebook for NHRIs on Business and Human Rights, and an online course on this same topic shortly thereafter.
The Case of the Philippines
In addition to indirect guidance, NHRIs can also proactively engage within their countries. A prominent example is the case of the Philippines. Reeling from Typhoon Haiyan in 2013, Greenpeace Southeast Asia, together with local organizations and affected people, filed a petition to the Commission on Human Rights (the Philippines’ NHRI) to investigate whether 47 Carbon Majors had “breached their responsibilities to respect the rights of the Filipino people” by exacerbating the climate crisis.
The Carbon Majors responded to the petition by questioning the jurisdiction of the Philippines’ Commission on Human Rights to investigate this case. However, the Commission put this question to rest in 2017 when it decided that it did indeed have jurisdiction and consequently, accepted the petition and began a series of fact-finding missions and public hearings. While the Commission lacks enforcement powers and the ability to award damages, it can issue powerful recommendations and set precedent for use in future jurisprudence.
After three years of intensive assessment and investigation, including the compilation of volumes of evidence and weeks of witness testimonies, the Commission announced its key findings and recommendations during the annual climate negotiations (COP25) in Madrid. The Commission’s detailed findings are still to be published, but Commissioner Roberto Eugenio T. Cadiz communicated the main take-aways:
- We are in a climate crisis, and it requires urgent action.
- This crisis is largely anthropogenic.
- The Carbon Majors have played a clear role in the crisis and its related impacts.
- People affected by the climate crisis must have access to remedy and justice.
- The Carbon Majors can be held legally liable.
- These liabilities sound in both civil and criminal law in the domestic courts of the Philippines and other countries.
The Philippines Commission’s findings were clear that businesses have a responsibility to protect human rights in the context of the climate crisis. Of particular significance, the Commission concluded that the evidence could support findings of mens rea — that is, criminal intent — in the conduct of the Carbon Majors. Particularly where that conduct involved obfuscation of climate science and obstruction of climate action, the Commission concluded the Carbon Majors could potentially be held accountable under both civil and criminal law. These findings provide significant support and relevant precedent for ongoing and emerging lawsuits against Chevron, Exxon, and other Carbon Majors around the world. Further impacts from the Commission’s findings remain to be seen, but they undoubtedly increase pressure on governments worldwide, and specifically in the Philippines, to ensure that businesses do not contribute to human rights violations and to guarantee access to justice for victims of such violations.
How else can NHRIs play a role in holding harmful businesses accountable?
The Philippines’ national inquiry may be the most prominent example of an NHRI investigating Big Business to date, but the October 2019 meeting of over 35 NHRIs in Geneva revealed a variety of ways NRHIs can contribute to efforts to hold corporations accountable for their human rights impacts, including:
- Putting the spotlight on corporations’ human rights violations, like when the Chilean NHRI produced a map of all socio-environmental conflicts and their root causes;
- Using NHRI’s global status to name and shame the corporations causing harm abroad;
- Mobilizing international human rights mechanisms, such as by submitting suspicious activity to the Universal Periodic Review or other human rights treaty bodies;
- Supporting affected communities, for instance by translating and visualizing local human rights violations;
- Reporting corporate harm to the relevant government agencies with the regulatory power to solve them;
- Cooperating transnationally to hold multinational companies accountable, especially when it comes to environmental issues not contained within national borders; and
- Speaking out when proposed trade deals threaten to entrench corporate power at the expense of the environment and democratic accountability.
While NHRIs have enormous potential to protect, promote, and ensure fulfillment of human rights, countries often limit them with very narrow mandates. In combination with a lack of financial resources, this challenges their effectiveness. Therefore, joint initiatives that allow the sharing of resources across NHRIs are highly valuable. As the representative of the Indian NHRI explained, India cannot clean up the river Ganges by itself when factories in Bangladesh are dumping their wastewater in it upstream.
But time is of the essence. As we wait for these joint missions to come to fruition, corporations continue to harm people and the environment. This is where you and I come in. In the Philippines, civil society took it into their own hands to invoke and leverage the power of their NHRI to hold the Carbon Majors accountable. This technique is replicable. And though this case represents a powerful strategy with promising, global implications, it is hardly the only way for NHRIs to support climate action. CIEL is compiling other promising examples of NHRIs engaging on climate change in a forthcoming handbook. In countries around the world, people can better understand the role of their NHRI, and then do their part to ensure it lives up to its potential. If governments won’t hold these companies accountable, the rest of us will.
By Chiara Arena, Legal Intern, Geneva
Originally posted on May 6, 2020