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On August 28, an advance version of a United Nations report on climate change and human rights was made available. In the report, submitted by the Secretary-General, several legal and policy proposals were made to address greenhouse gas emissions and climate change. Notably, the report calls for countries to impose stricter legal penalties on businesses for contributing to climate change, including legal liability for “misinformation” relating to climate change and a ban of advertising by fossil fuel companies.

As international concerns rise over the impacts of climate change, leaders have worked to develop new legal concepts to force action by countries and businesses. International treaties, like the Paris Agreement, create the framework for action, however it is incumbent on governments and courts to enforce the agreements. One avenue is to link climate change with human rights.

Human rights have been generally described by the UN as “rights we have simply because we exist as human beings.” The Universal Declaration of Human Rights, adopted in 1948, includes life, liberty, and security; freedom from slavery or servitude, protection from cruel or inhuman treatment or punishment; and right to a trial, amongst many others. However, there is no direct mention of climate change or the environment, as it was not a concern immediately following World War II.

Despite that omission, there has been a growing push to include the protection from the impacts of climate change as a human right. Climate activists are attempting to amend language in various treaties and legal documents to expand the legal definition to include climate change, with little success. There have also been attempts to accomplish it through the courts, with one notable victory in the European Court of Human Rights.

Within these circles, there has been an increased focus on the concept of climate justice. Climate justice not only looks at the impacts of climate change, but also considers how people are disproportionately affected. Specifically, it focuses on residents of low-lying areas and islands, developing countries, those who are elderly and in poor health, and other high-risk groups.

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Climate justice is an integral part in being able to establish legal liability. Generally, for a legal action to be successful, there must be a “bad actor” and a victim who is experiencing unique harm. If everyone is impacted by climate change equally, then there is no victim. Activists are targeting businesses with high GHG emissions and fossil fuel companies in their litigation efforts.

The UN Human Rights Council has taken a similar stance. On July 12, 2023, the UNHRC adopted a resolution linking human rights to climate change and encouraging legislative action at the international and national levels to codify it. Also included in the resolution was a request to the Secretary General to conduct a study on the topic, making recommendations for solutions.

The report, “Analytical study on the impact of loss and damage from the adverse effects of climate change on the full enjoyment of human rights, exploring equity-based approaches and solutions to addressing the same”, was submitted to the UNHRC on August 27, for consideration during their session occurring between September 9 and October 9. An in-person presentation will occur during the session.

The report includes various proposals relating to climate change and climate justice. However, two proposals are directly aimed at the business community and the fossil fuel industry.

The report states, “There have been calls for the establishment of a global climate reparations fund to complement the State-centric loss and damage fund, with a responsibility-based approach to quantifying and implementing the climate reparations owed by fossil fuel companies due to their operational and value-chain emissions, history of climate denial, disinformation and misinformation and their efforts to obstruct, undermine or delay climate action...

“To support the efforts of rights holders to access remedies for loss and damage through judicial and non-judicial mechanisms. States should seek to advance legal, policy and normative measures to hold polluters accountable, including for misinformation, and support loss and damage-related claims, including, where applicable, extraterritorial climate litigation. In that context, States should also seek to ban advertising by fossil fuel companies.”

This should alarm businesses as it seeks to create a clear legal liability for business owners. The result could be class action style lawsuits, like those against the tobacco industry. Additionally, it seeks to create a pathway for international litigation, allowing legal action to originate in countries where the business may have no presence.

Additionally, freedom of speech advocates will take issue with the concept of misinformation. This has been a highly debated issue in the United States relating to COVID-19 and government censorship of “misinformation” on social media platforms. It is unclear who determines what is classified as misinformation and who will determine what is truth.

Ultimately, the report is simply another proposal of ideas. It is incumbent on countries to implement them either through national law or international treaty. Countries may choose to ignore the recommendations completely. However, the recommendations are becoming a theme in UN reports and international circles. Expect to see increased pressure to implement them.