Climate change justice and corporate responsibility: commentary on the International Bar Association recommendations

Abstract

This commentary considers the International Bar Association's recommendations on corporate responsibility in its Task Force Report Achieving Justice and Human Rights in an Era of Climate Disruption. In so doing, this commentary explores the key recommendations in the report relating to corporate responsibility – namely implementation of the UN Framework on Corporate Responsibility to Protect Human Rights, corporate reporting and the regulation of corporations, at home and abroad – which together provide important mechanisms to address the growing calls for corporate responsibility in the quest for climate justice.

Notes

1 See, for example, Paul Baer and others, ‘Equity and Greenhouse Gas Responsibility’ (2000) 289 Science 2287; Sven Bode, ‘Equal Emissions Per Capita Over Time – A Proposal to Combine Responsibility and Equity of Rights for Post-2012 GHG Emission Entitlement Allocation’ (2004) 14 Environmental Policy and Governance 300 (per capita allocation); Global Commons Institute, Submission on Contraction and Convergence to the UNFCCC (2012), see www.gci.org.uk/Documents/GCI_to_UNFCCC_and_Movie_.pdf (contraction and convergence toward a common per capita emission rate); Niklas Hohne, Michel den Elzen and Martin Weiss, ‘Common but Differentiated Convergence (CDC): A New Conceptual Approach to Long-term Climate Policy’ (2006) 6 Climate Policy 181 (common but differentiated emission rate with convergence over time toward a common per capita emission rate); Lasse Ringius, Pia Frederiksen and Katja Birr-Pedersen, Burden Sharing in the Context of Global Climate Change: A North-South Perspective (NERI Technical Report No 424, 2002) http://www2.dmu.dk/1_viden/2_publikationer/3_fagrapporter/rapporter/fr424.pdf, last accessed 1 January 2016. (multi-criteria regimes accounting for historic responsibility, capability to contribute and specific needs); Kirk Smith and others, ‘Joint CO₂ and CH₄ Accountability for Global Warming’ (2013) 110(31) Proceedings of the National Academy of Sciences USA E2865 (‘debt’ from historic emissions); Michel den Elzen and Paul Lucas, ‘The FAIR Model: A Tool to Analyse Environmental and Costs Implications of Regimes of Future Commitments’ (2005) 10 Environmental Modeling and Assessment 115 (temperature response from national historic emissions); Shoibal Chakravarty and others, ‘Sharing Global CO₂ Emission Reductions Among One Billion High Emitters’ (2009) 106 Proceedings of the National Academy of Sciences USA 1188 (share of burden allocated to wealthiest individuals globally); and Peter Frumhoff, Richard Heede and Naomi Oreskes, ‘The Climate Responsibilities of Industrial Carbon Polluters’ (2015) 132 Climatic Change 157 (shared responsibility of corporations, and particularly corporations engaged in the production of fossil fuels).

2 Richard Heede, ‘Tracing Anthropogenic Carbon Dioxide and Methane Emissions to Fossil Fuel and Cement Producers, 1854–2010’ (2014) 122 Climatic Change 229, 232–34.

3 Ibid, 234.

4 Ibid.

5 John Moorhead and Tim Nixon, Global 500 Greenhouse Gas Report: The Fossil Fuel Energy Sector (Thomson Reuters May 2015) 2.

6 Ibid, 3. It is notable that these 32 companies were also members of the group of entities in the Heede study (n 2) fn 4.

7 Heede (n 2) 229.

8 Heede, ibid. Frumhoff and others (n 1) 161 use the date 1988 rather than 1986.

9 Phillip Shabecoff, ‘Global Warming Has Begun, Expert Tells Senate’ New York Times (24 June 1988), see http://www.nytimes.com/1988/06/24/us/global-warming-has-begun-expert-tells-senate.html?pagewanted=all, last accessed 1 January, 2016.

10 The most recent IPCC report uses the word ‘irreversible’ 12 times in its Summary for Policymakers (Intergovernmental Panel on Climate Change, Climate Change 2014 Synthesis Report: Summary for Policymakers (IPCC 2015)).

11 For example, the Moorhead and Nixon study (n 5) 8 concludes that between 2010 and 2013 emissions from the 32 energy companies increased by 1.3 per cent.

12 Heede (n 2) 237–38. See also International Energy Agency, Special Report, Energy and Climate Change (2015) 18–19. https://www.iea.org/publications/freepublications/publication/WEO2015SpecialReportonEnergyandClimateChange.pdf, last accessed 1 January 2016.

13 James Leaton, ‘Unburnable Carbon – Are the World's Financial Markets Carrying a Carbon Bubble?’ (Carbon Tracker 2014) 8.

14 International Energy Agency (n 12) at 18.

15 Christophe McGlade and Paul Ekins, ‘The Geographical Distribution of Fossil Fuels Unused When Limiting Global Warming to 2°C’ (2015) 517 Nature 187.

16 Frumhoff and others (n 1) 163–64.

17 International Bar Association, Achieving Justice and Human Rights in an Era of Climate Disruption, International Bar Association Climate Change Justice and Human Rights Task Force Report (International Bar Association 2014) 8.

18 Ibid, 17–18.

19 Ibid, 16.

20 See UN Guiding Principles on Business and Human Rights, HR/PUB/11/04; Human Rights Council Resolution 17/4, ‘Human Rights and Transnational Corporations and Other Business Enterprises’ (17th Session, 6 July 2011) UN Doc A/HRC/RES/17/4, para 1 (endorsing the UN Guiding Principles on Business and Human Rights, HR/PUB/11/04).

21 See in particular: ‘Joint Civil Society Statement on the Draft Guiding Principles on Business and Human Rights’ (14 January 2011) www.fidh.org/IMG/pdf/Joint_CSO_Statement_on_GPs.pdf, last accessed 1 January 2016.

22 UN Guiding Principles (n 20) at Principle 11. Soft law instruments such as the Tripartite Declaration of Principles Concerning Multinational Enterprises and Social Policy (first adopted in 1977 and updated in 2006), and the OECD Guidelines for Multinational Enterprises OECD Guidelines for Multinational Enterprises (OECD Publishing, 2011) http://dx.doi.org/10.1787/9789264115415-en, last accessed 1 January 2016, recognise the corporate responsibility to respect human rights.

23 UN Guiding Principles (n 20), Principle 13.

24 Ibid, Principle 15.

25 Ibid, 1. See also Adam McBeth and Justine Nolan, ‘The International Protection of Human Rights and Fundamental Freedoms’ in Stephen Tully (ed), International Corporate Legal Responsibility (Kluwer Law 2012) 175, 199.

26 IBA Report (n 17) 148.

27 Ibid, 148–49.

28 John Ruggie, ‘Clarifying the Concepts of “Sphere of Influence” and “Complicity”’ (15 May 2008) UN Doc A/HRC/8/16, para 32.

29 IBA Report (n 17) 41.

30 Bjorn Fasterling and Geert Demuijnck, ‘Human Rights in the Void? Due Diligence in the UN Guiding Principles on Business and Human Rights’ (2013) 116 Journal of Business Ethics 799, 800.

31 IBA Report (n 17) 149.

32 Ibid.

33 Ibid, 17.

34 350.org is a movement that uses ‘distributed, grassroots organizing to run adaptive, locally-driven campaigns in every corner of the globe’ (see http://350.org).

35 For more information about DivestInvest, see http://divestinvest.org, last accessed 1 January 2016.

36 See Rockefeller Brothers Divestment Statement (September 2014) at www.rbf.org/content/divestment-statement, last accessed 1 January 2016.

37 IPCC Report (n 10) 26; ‘Ban Ki-moon Urges More Fossil Fuel Divestment: Statement’ (UNFCCC Newsroom, 4 November 2014) http://newsroom.unfccc.int/financial-flows/ban-ki-moon-speaks-in-favour-of-divestment/, last accessed 1 January 2016.

38 CDP, ‘Strategic Plan 2014–16’, 4 www.cdp.net/Documents/CDP-strategic-plan-2014-2016.pdf, last accessed 1 January 2016. See also Neil Gunningham, Robert Kagan and Dorothy Thornton, ‘Social License and Environmental Protection: Why Businesses Go Beyond Compliance’ (2004) 29 Law & Social Inquiry 307, 322–23.

39 The Global Reporting Initiative is an international organisation focused on sustainability reporting that ‘helps businesses, governments and other organizations understand and communicate the impact of business on critical sustainability issues such as climate change, human rights, corruption and many others’. For more information, see www.globalreporting.org/Pages/default.aspx, last accessed 1 January 2016.

40 CDP holds ‘the largest collection globally of self reported climate change, water and forest-risk data’ which it uses to assist companies, investors and cities to make informed investment decisions and leverage market forces to incentivise the disclosure of their environmental information. For more information, see www.cdp.net/en-US/Pages/HomePage.aspx, last accessed 1 January 2016

41 CDP, ‘CDP's 2015 Climate Change Information Request’ (CDP Worldwide 2015) 1, see www.cdp.net/CDP%20Questionaire%20Documents/CDP-climate-change-information-request-2015.pdf, last accessed 1 January 2016.

42 IBA Report (n 17) 149.

43 In the short term, the Task Force encourages states to utilise the ISO/TS technical specification on carbon footprints of products (ISO/TS 14067:2013 Greenhouse gases – Carbon footprint of products – Requirements and guidelines for quantification and communication available at www.iso.org/iso/catalogue_detail?csnumber=59521), last accessed 1 January 2016 or other available standards.

44 IBA Report (n 17) 150–51. The recommendation does not require fossil fuel companies to identify carbon stocks represented by fossil fuel reserves. This is important information, according to Carbon Tracker, to estimate long-term systemic risk (Carbon Tracker, ‘Are the World's Financial Markets Carrying a Carbon Bubble?’ (2014) 22 www.carbontracker.org/wp-content/uploads/2014/09/Unburnable-Carbon-Full-rev2-1.pdf), last accessed 1 January 2016.

45 IBA Report (n 17) 151.

46 Ibid.

47 See, for example, Notice with respect to reporting of greenhouse gases (GHGs) for 2014, which requires the reporting of 2014 GHG emissions data, published in the Canada Gazette Part I on 11 October 2014 http://gazette.gc.ca/rp-pr/p1/2014/2014-10-11/html/notice-avis-eng.php, last accessed 1 January 2016

48 See IBA Report (n 17) 72–73 for a discussion of this issue.

49 Ibid, 151.

50 Ibid, 152.

51 CDP (n 38) 4.

52 IBA Report (n 17) 18.

53 Ibid, 152.

54 Ibid.

55 Ibid.

56 Ibid, 153.

57 See, for example, Carmen Gonzalez, ‘Environmental Justice and International Law’ in Shawkat Alam and others (eds), Routledge Handbook of International Environmental Law (Routledge 2012) 34.

58 Alice de Jonge, Transnational Corporations and International Law: Accountability in the Global Business Environment (Edward Elgar 2011) 83–84.

59 Gonzalez (n 57) 34; Tseming Yang, ‘International Environmental Protection: Human Rights and the North-South Divide’ in Kathryn Mutz, Gary Bryner and Douglas Kenney (eds), Justice and Natural Resources: Concepts, Strategies and Applications (Island Press 2002) 97, 105–06.

60 IBA Report (n 17) 153.

61 Jennifer Zerk, ‘Extraterritorial Jurisdiction: Lessons for the Business and Human Rights Sphere from Six Regulatory Areas’ (June 2010) Corporate Social Responsibility Initiative Working Paper No 59, 176.

62 Jonathan Nash, ‘The Curious Legal Landscape of the Extraterritoriality of U.S. Environmental Laws’ (2010) 50 Virginia Journal of International Law 997.

63 Ibid, 1012. See also Zerk (n 61), who states that political and respect for territorial sovereignty means that the use of extraterritorial jurisdiction can be controversial.

64 Nash (n 62) 1013. See also Zerk (n 61).

65 Zerk (n 61) 193. See also Parliamentary Joint Statutory Committee on Corporations and Securities, Parliament of Australia, Report on the Corporate Code of Conduct Bill 2000 (2001), paras [4.13]–[4.17].

66 Parliamentary Joint Statutory Committee on Corporations and Securities (n 65), paras [4.13]–[4.51].

67 IBA Report (n 17) 153.

68 1977, 15 USC § 78dd-1, et seq. Other jurisdictions have also implemented this type of legislation, see for example: Canadian Corruption of Foreign Public Officials Act 2004 (SC 1998, c 34).

69 2010, Pub L No 111–203, 124 Stat 1376, 1641.

70 IBA Report (n 17) 153.

71 See, in particular, Convention on Combating Bribery of Foreign Public Officials in International Business Transactions (adopted by the General Assembly by resolution 58/4 of 31 October 2003, entered into force 14 December 2005); Inter-American Convention Against Corruption (adopted at the third plenary session, 29 March 1996); and OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions and the UN Convention against Corruption. See also Zerk (n 61).

72 IBA Report (n 17) 17 (Recommendation 3.1.3(iii)) and 152.

73 Ibid, 137.

74 Ibid, 147. See also John H Knox, Report of the Independent Expert on the Issue of Human Rights Obligations Relating to the Enjoyment of a Safe, Clean, Healthy and Sustainable Environment, Mapping Report (30 December 2013) UN Doc A/HRC/25/53, para 26, para 61.

75 IBA Report (n 17) 127. The cases also face the American concept of pre-emption, with courts finding that the common law action in question was pre-empted by the US Federal Clean Air Act.

76 IBA Report (n 17) 118.

77 Ibid.

78 Hari Osofsky, ‘The Continuing Importance of Climate Change Litigation’ (2010) 1 Climate Law 3.

79 Brian Preston, ‘The Influence of Climate Change Litigation on Governments and the Private Sector’ (2011) 2 Climate Law 485.

80 Osofsky (n 78) 5 and Preston (n 79) 487.

81 With the exception of the recent Urgenda v Netherlands decision (Hague District Court, Case Number: C/09/456689/HA ZA 13-1396, 24 June 2015), a summary of key domestic climate change litigation is provided in the IBA Report (n 17) 76–85.

82 See, for example, Bentley v BGP Properties [2006] NSWLEC 34 (6 February 2006) at [139] where the NSW Land and Environment Court emphasised that penalties for the commission of an environmental offence need to be designed not only to deter the offender but ‘must also serve the purpose of general or public deterrence’ to others who might otherwise be tempted to commit similar crimes.

83 See, for example, Andrew Popper, ‘In Defense of Deterrence’ (2005) 75 Albany Law Review 181; Gary Schwartz, ‘Reality in the Economic Analysis of Tort Law: Does Tort Really Deter?’ (1994) 42 UCLA L Rev 377 (concluding that while tort law does deter as thoroughly as economic models suggest, it does provide a ‘moderate’ form of the deterrence). For a contrary view, see Thomas Galligan Jr, ‘The Risks of and Reactions to Underdeterrence in Torts’ (2005) 70 Missouri Law Review 691.

84 Tom Tietenberg, ‘Introduction and Overview’ in Tom Tietenberg (ed), Innovation in Environmental Policy: Economic and Legal Aspects of Recent Developments in Environmental Enforcement and Liability (Edward Elgar 1992) 1, 5.

85 IBA Report (n 17) 76–85.

86 Most notably the US Supreme Court decision in Massachusetts v EPA 549 US 497 (2007) and recent decision of the Hague District Court in Urgenda v Netherlands (Hague District Court, Case Number: C/09/456689/HA ZA 13-1396, 24 June 2015).

87 IBA Report (n 17) 127.

88 Ibid, Chapter 3.1.