33
doctrine focuses on where the conduct’s effects are felt, rather than where
the conduct occurs. The effects doctrine serves as one of the bases of
jurisdiction in several jurisdictions, including Australia (with the exception
of Western Australia), Canada, the European Union, New Zealand, and the
United Kingdom.134
2.75. While human rights bodies in the home States of the respondent
Carbon Majors could exercise jurisdiction over this matter, it would be
impractical, if not impossible, to provide recourse for petitioners in this
manner. Petitioners would have to file petitions in multiple foreign
jurisdictions, imposing an extreme burden -- financial and technical -- on the
petitioners.
This piecemeal approach would also result in costly
investigations with respect to the individual contributions of the respective
Carbon Majors and the human rights harms they cause, rather than a
cumulative assessment of the harms that petitioners are now suffering.
2.76. The doctrine of necessity permits the Honorable Commission
to accept a complaint where there is no feasible alternative human rights
forum in other countries, or where the petitioners may be reasonably
expected to bring the action.135 This doctrine has been adopted in many
jurisdictions to ensure that victims are not denied access to justice, a core
principle underlying international law. The rationale for this doctrine has
been explained by a Canadian court of appeals as follows:
“The forum of necessity doctrine recognizes that
there will be exceptional cases where, despite the absence
of a real and substantial connection, the need to ensure
access to justice will justify the assumption of
jurisdiction… Where there is no other forum in which the
plaintiff can reasonably seek relief, there is a residual
discretion to assume jurisdiction.”136
2.77. Given that the petitioners have raised their concerns regarding
human rights violations that have occurred -- and are still occurring -- in the
Philippines, the Honorable Commission is the most appropriate forum to
undertake an investigation and issue findings as to how these violations can,
and shall, be remedied.
2.78. The authority to exercise jurisdiction over the respondent
Carbon Majors, based on the territoriality principle and the effects doctrine,
134
Vanuatu Environmental Law Association and West Coast Environmental Law, Taking Climate Justice
into Our Own Hands: A Model Climate Compensation Act (December 2015), pp. 17-18, available at
http://static1.squarespace.com/static/565777bfe4b0509ba9e4f31e/t/5666fee5dc5cb481d318cb85/14495905
01349/web_version_final.pdf, last accessed on 06 February 2017.
135
See e.g. Nwapi, C., Jurisdiction by Necessity and the Regulation of the Transnational Corporate Actor,
(2014) 30(78) Utrecht Journal of International and European Law 24, available at
http://dx.doi.org/10.5334/ujiel.cb, last accessed on 06 February 2017.
136
Van Breda v. Village Resorts Limited, 98 OR (3d) 721 (2010).
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