National
Establish primacy of human rights
Formalize through national law the need for human rights to be upheld by states and corporations (as well as their subsidiaries and representatives) with clear guidance on what is considered a violation of human rights and what the appropriate punishments are for violations.
What does this look like?
Establish the primacy of human rights, and enshrine:
a) the primal obligation of a state and its representatives to protect these rights not subject to appropriate national legislation
b) a corporation’s legal obligation to respect human rights as well as the common good, not subject to any law of the originating country providing immunity to transnational corporations operating in other countries.
c) mechanisms for individuals or entities to hold polluters liable for violating these rights.
Clearly define in law what is considered a violation of these rights, and the civil, criminal, financial, administrative or any other type of action that can be taken when violations occur.
In creating guidelines for how to define a violation of human rights in national law, governments should take into account:
The Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law adopted in 2005 by the United Nations General Assembly.1 Some important concepts include:
The obligation to respect, ensure respect for and implement international human rights law and international humanitarian law.
A victims’ right to remedies, including:
Access to justice.
Reparation for harm suffered.
Access to relevant information concerning violations and reparation mechanisms.
The updated set of principles for the protection and promotion of human rights through action to combat impunity (impunity principles) endorsed by the United Nations Commission on Human Rights (succeeded by the Human Rights Council in 2006-E/CN.4/2005/102/Add.1)2. Some important concepts include:
General obligations of States to take effective action to combat impunity.
The inalienable right to the truth.
The establishment and role of truth commissions.
Jurisdiction of international and internationalized criminal tribunals.
Measures for strengthening the effectiveness of international legal principles concerning universal and international jurisdiction.
Restrictions on prescription.
Rights and duties arising out of the obligation to make reparation.
Reparation procedures.
Publicizing reparation procedures.
Scope of the right to reparation.
Expand this legal obligation of corporations to extend to subsidiaries of transnational corporations.
Click here for a case study on France’s ‘duty of vigilance’ law, passed in 2017, which provides a ground-breaking precedent for this that, though imperfect in large part due to corporate lobbying, should continue to be built upon.
Expand the legal obligation of corporations to include the CEOs, managers, and those in positions of power within corporations.
Adopt legislation that enshrines climate commitments made at institutions such as the United Nations Framework Convention on Climate Change into law so that corporations can be held accountable to respect them.
Stop corporate pre-emption
Implement safeguards and regulations through national legislation that stop polluting corporations from attempting to pre-empt being brought to justice or to abuse processes meant to uphold justice.
What does this look like
Adopt and enforce safeguards against any abuse of rules such as those pertaining to prescription and amnesty, among others that fosters or contributes to impunity.
Prescription – either of prosecution or penalty - in judicial, administrative, and other cases should not occur for periods that render no effective remedy available.
Prescription should not apply to crimes under international law that are by their nature imprescriptible. When it does or must apply, prescription should not be effective against civil or administrative actions brought by victims seeking reparation for their injuries.
Stop attempts by polluting corporations to avoid justice and fair trials, such as:
Appealing to move legal claims to parts of the judicial system that favour a corporation.
Counter suing.
Incorporate pre-emption clauses for international litigation.
Through legislation or litigation, ensure that the corporation being held liable is not able to pre-empt further or future liability actions from governments and/or victims at the sub-national level.
Adopt provisions that allow for the implementation of strict liability regimens, especially for environmental litigation cases.
Adopt constitutional reforms that allow the inclusion of nature rights and environmental rights.
Reverse burden of proof principle
Increase access to justice against corporate impunity by ensuring that the burden of proving whether harm or abuses were committed by transnational corporations or certain actors should fall to the accused, not to the past, present and future victims of such abuse.
What does this look like?
Adopt provisions to reverse the burden of proof principle to help ensure victims are better positioned within justice processes that displace national law.
Adopt provisions to place the burden of proof on polluting corporations, not the people holding them accountable.
Establish primacy of the rights of nature
Formalize in national law, including amendments to constitutions, the right of nature to be protected, alongside human rights and before any other rights.
What does this look like?
Formally recognize the rights of nature, enshrining its right to be protected and conserved, and concretize the primacy of the rights of nature and human rights above all else.
Countries where similar action has been taken include Ecuador, Bolivia, India, and New Zealand, though it is essential to note that in all cases, meaningful implementation is yet to be achieved. Click here to read more about the measures in each of these countries.
Climate damages tax on polluters
Implement national taxes on corporations on fossil fuel extraction to incentivize a shift away from fossil fuels and to help justly and directly finance this shift. Such a tax must not be placed upon people but rather to serve the people—a tax on polluting corporations and the wealthy elites that benefit from them.
What does this look like?
Establish a national climate damages tax for every unit that polluting industries pollute or extract.
The payment of the tax should not be used to permit or legitimize more pollution to take place.
Corporations must be legally barred from passing on the cost of the tax to consumers.
A climate damages tax should incentivize a reorientation by the power-producing industry away from fossil fuels by reducing the profits they derive from that activity. This also which makes them a less attractive investment option.
The tax should be seen in relation to a host of complementary measures including the removal of fossil fuel subsidies to make polluting industry business increasingly non-viable.
The design of the tax should ensure that it escalates annually making polluting industries’ fuel business increasingly unprofitable year on year.
It must be a tax on extraction, with the cost borne directly by the corporations, not the country where the extraction is taking place. By targeting the very beginning of the carbon cycle, the number of tax-paying entities is kept relatively low.
Implementation of the tax must include reporting transparently on what is being paid, making it more difficult for polluters to lobby politicians for preferential rules, and prices.
Finance received through the collection of such a tax should directly contribute to the international financing facility for Loss and Damage and go directly to communities to address climate impacts.
End subsidies, “bailouts” and liability waivers for polluting industries
End a variety of mechanisms that artificially prop up polluting industries and insulate them from addressing the damage they’ve caused, including but not limited to subsidies, bailouts, and liability waivers.
What does this look like?
Reject outright any policies or proposals that seek to waive the liability or culpability of corporations, whether it be past, present or future. Guard against these clauses being embedded in otherwise positive climate action legislation.
Reject any and all “bailouts” that incentivize polluting industries when they must instead be phased out. Rather, fund the relief and recovery people and nature need by advancing liability measures in this roadmap that require corporations to pay for the damage they’ve knowingly caused and the broken systems they have intentionally helped create.
Stimulus and relief packages such as those responding to the COVID-19 pandemic should be harnessed as opportunities to advance liability measures at the national level.
End government subsidies to polluting industries and corporations, with no incremental phase-out period.