Bedrock Rights: Collaborating to Combat Climate Change

As world leaders meet in Glasgow to tackle climate change at the COP26 Summit, the recently released Bearing Witness: The Human Rights Case Against Fracking and Climate Change, edited by Thomas A. Kerns and Kathleen Dean Moore, has inspired collaborations closer to home. Earlier this year, the editors collaborated with the Spring Creek Project to produce a documentary film, Bedrock Rights: A New Foundation for Global Action Against Fracking and Climate Change. This week, with the world's attention focused on Glasgow, a series of essays penned by Kathleen Dean Moore will appear in Orion Magazine, making the case for human rights.

Today on the OSU Press blog, in celebration of University Press Week, we're honored to interview Thomas Kerns and Kathleen Dean Moore about the inspiration for Bearing Witness. They make a powerful case for viewing climate change through the lens of human rights, offering a roadmap for meaningful collaboration between governments and the people on the front lines who are battling to avert catastrophe.

OSU Press: Can you tell our readers about the inspiration behind Bearing Witness?

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Kerns and Moore: Our question has been: How might global action against climate change be empowered if the world understood that the actions of transnational oil and gas corporations and their government allies are not only environmental threats? Rather, they are in addition serious and widespread violations of fundamental human rights – starting with rights to health, clean water, and Indigenous sovereignty, and leading almost inexorably to violations of the political rights to freedom of expression and assembly.

Our hypothesis (our hope) is that when scientific studies and political horse-trading fail to stall climate catastrophe, moral outrage at its injustice – expressed through human rights courts – can inspire important and effective action.

Action in the courts can globally affirm that when climate change, and the radical-extraction techniques that fuel it, directly threaten universal human rights to life, liberty, or security of person, then they breech the global moral consensus about the limits of human decency – those deeply and broadly accepted moral norms encoded in the Universal Declaration of Human Rights and other human rights instruments.

OSU Press: What is different about the approach to climate change that you lay out in Bearing Witness?

Kerns and Moore: Activists have for decades directed their ire, their fury, at oil, gas and coal corporations, focusing powerful protests, demonstrations, and court cases against industry’s systematically self-enriching, self-aggrandizing, often illegal, immoral, destructive, and not infrequently violent policies and behaviors.

And yet, during those very same decades, the fossil fuel industry has thrived and grown even larger, richer, and more powerful than it was in decades past, and has spewed in those few decades far more CO2, methane, and other pollutants into the atmosphere than in all of human history. Over half of all the CO2 in the atmosphere today, for example, has been put there just since the mid-1970s. So despite the earnest, unwavering hard work of many thousands of deeply committed activists, something is not working.

As Greta Thunberg told thousands of young people at the Fridays for Future march in Glasgow outside the COP26 climate meetings, “We cannot solve a crisis by the same methods that got us into it in the first place.” Creatively revolutionary approaches are needed.

This book and the Permanent Peoples Tribunal hearings on which it is based take a radically different approach that is unique in two main ways: First it introduces a whole new set of value standards into the conversation, namely the globally endorsed moral and legal norms encoded in the Universal Declaration of Human Rights and other internationally recognized human rights instruments. And second, it targets governments more than private corporations for two reasons: because governments are the entities with the most clearly defined human rights obligations, and because governments have the legal, moral and regulatory authority to license, regulate, drastically change, or completely end fossil fuel practices.

Why governments? We know that governments are complicit in allowing, indeed fostering and encouraging the policies and behaviors of the fossil fuels industry: 1) industry lobbyists are allowed to play a major role in drafting and supporting legislation and rulemaking to favor their private corporate interests; 2) government regulators are, for whatever reasons, far beyond lax in their so-called “enforcement” of regulations; and 3) governments affirmatively provide many billions in subsidies to fossil fuel industries thereby keeping the consumer costs of those fuels artificially low, insuring their continued use and setting up unfair competition for renewable energy startups. And yet governments have clear human rights obligations: “to secure these rights governments are instituted among men,” says the US Declaration of Independence. Protecting rights is a government’s central raison d’etre and if it is not doing that it is not fulfilling its primary function as a government.

Francis Bacon’s 1620 book, Novum Organum (new instrument), laid the groundwork for a revolution in the inductive sciences. The 1948 Universal Declaration of Human Rights established the grounds of the modern human rights revolution with its unanimous acceptance by representatives of every nation on earth. This book now offers a third novum organum. It brings together science’s methodical search for factual truth and the hunger for justice and respect for human dignity embodied in human rights norms. Both to be put in service of addressing the crisis of climate breakdown.

OSU Press: How is climate breakdown creating a global crisis of justice?

Kerns and Moore: The climate crisis and its industrial causes, as detailed in the book and the Tribunal, undermine the rights to health, to security of person, to an adequate standard of living, to a healthy and sustainable environment, and to a broad range of other internationally recognized rights. These are some key findings from the Tribunal's Advisory Opinion:

• Government authorities in collusion with powerful corporate violators have “betrayed the people, and in doing so, have made a mockery of democracy, the rule of law, and the rights of peoples to determine their own destiny, and that of the planet.”
• Fossil fuel mining and its local and global consequences are unjust, a massive violation of human rights norms embedded in international agreements that are as close to a global moral consensus as this world is likely ever to see.
• They are rooted in systemic racism and colonialism, by which the worst consequences fall on those least at fault – people of color, people in low-lying and developing nations, Indigenous peoples north and south, children, and future generations. 

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OSU Press: In what specific ways do fossil-fuel corporations and their government allies violate the Universal Declaration of Human Rights and the Nuremberg Code?

Kerns and Moore:  Fracking violates the Nuremberg Code by releasing a long list of noxious substances into the environment, as we wrote in this Orion Magazine article: Benzene. Toluene. Ethylbenzene. Xylene. Arsenic. Cadmium. Lead. Formaldehyde. Chlorine. Hydrochloric Acid. 2-Butoxy ethanol. Ammonium chloride. Mercury. Glutaraldehyde. [1] These are chemicals customarily used to kill insects, clean toilet bowls, strip paint, polish brass, etch glass, preserve corpses, and commit murder. Now, they are among an estimated 1021 chemicals that the fossil-fuel industry mixes with fresh water and forces underground to crack apart rock, releasing methane and oil – a process called hydraulic fracking or “fracking.”

These are dangerous chemicals that cause cancer, birth defects, and poisoning. Yet fracking injects them into the ground under high pressure, spreading them into aquifers and wells.

According to the international human-rights tribunal, these practices constitute “deadly, large-scale experiments in poisoning humans and nonhumans that the fracking industry is currently conducting in violation of the Nuremberg Code.” [2] This is a terrible indictment; the Nuremberg Code is a code of medical ethics, developed in 1947 by a panel of experts investigating Nazi doctors who conducted medical experiments in concentration camps.

OSU Press: How has growing attention to the links between racial/social injustice and environmental destruction changed the story about global warming since the last COP meeting?

Kerns and Moore: The Advisory Opinion specifically implicates systemic racism and colonialism (see above). Boston University scholar Ibram X. Kendi draws the connections this way (paraphrasing):  It is not possible to frack without wrecking the land. It is not possible to wreck the land without destroying the livelihoods and homes of people. It is not possible to destroy peoples’ livelihoods and homes without devaluing their way of life. It is not possible to devalue entire ways of life without devaluing also the people. And that, he points out, is racism.

OSU Press: What remedies are available to redress rights violations? Who can hold industry and government responsible?

Kerns and Moore: Industry and government can be held accountable by courts and by the aroused conscience of the streets.

In the United States case of Juliana v. US, 21 young people claim that the nation’s current energy policy is unconstitutional and violates their rights to life, liberty, and property. In a Canadian case, LaRose v. Her Majesty the Queen, fifteen children argue that the government’s actions in support of massive fossil-fuel development violate their rights under the Canadian Charter of Rights and Freedoms.

The 2018 Urgenda case in the Netherlands marked an even more dramatic step. For the first time in history, a nation was required by its own courts to protect the human rights of its citizens – rights guaranteed not by that nation’s laws, but by the European Convention on Human Rights. The nation’s Supreme Court affirmed an order directing the Dutch government to slash carbon emissions 25% by 2020.

The 2018 Permanent Peoples Tribunal, an international human-rights court that had previously exposed human-rights abuses in Vietnam, Bhopal, and Chernobyl, found massive human-rights abuses by the fossil-fuel industry in collusion with governments. The focus of Bearing Witness, this is the first, and so far only, case of its kind. Although international courts have no enforcement powers, the Tribunal informed the international legal imagination with innovative arguments about the human-rights obligations of governments in a world staggered by climate change.

Perhaps the primary result of the Tribunal was to hear the wrongs that are revealed when “the voices of the afflicted are given a space in which to speak the injustices done to them by a system radically tilted toward corporate plunder and profit,” in Anna Grear’s words. The hearing united the witnesses, not only as Big Oil’s intended victims, but as champions of justice. This is what we mean by "arousing the conscience of the streets."

The court’s Advisory Opinion, in its Recommendations section, urged several actions that should be undertaken by the UN; by national, regional and local governments; and by individuals, NGOs, and citizen groups:

• State and sub-state jurisdictions should consider adopting the Declaration on Human Rights and Climate Change and making its standards and provisions part of public policy at all levels.
• State and sub-state jurisdictions should adopt the Universal Declaration of the Rights of Mother Earth in their constitutions and legislation.
• Local civil society tribunals, inquiries, and trials should be conducted.
• We need to reshape the public conversation and re-awaken the moral imagination of citizens.