Business, human rights and the IBA Climate Justice Report

Abstract

The 2014 Climate Justice Report by the International Bar Association (IBA) makes many recommendations designed to contribute to the fight against climate change. One important step forward is its explicit recognition of the responsibility of business to respect human rights affected by climate change. This commentary explores the extent to which the IBA's approach to this issue aligns with the business responsibility to respect human rights as described in the 2011 United Nations Guiding Principles on Business and Human Rights. The commentary also considers other international standards that incorporate business responsibilities for human rights in order to determine whether sufficient guidance has yet emerged for businesses to effectively address human rights and climate concerns.

Notes

1 International Bar Association Climate Change Justice and Human Rights Task Force, Achieving Justice and Human Rights in an Era of Climate Disruption (International Bar Association 2014) www.ibanet.org/PresidentialTaskForceCCJHR2014.aspx, this and all other URLs last accessed 24 August 2015, unless otherwise stated (Climate Justice Report).

2 Ibid, 3.

3 ‘New Guiding Principles on Business and Human Rights Endorsed by the UN Human Rights Council’ (Office of the United Nations High Commissioner for Human Rights 2011) www.ohchr.org/en/NewsEvents/Pages/DisplayNews.aspx?NewsID=11164; Report of the Special Representative of the Secretary-General on the issue of human rights and transnational corporations and other business enterprises, John Ruggie, Guiding Principles on Business and Human Rights: Implementing the United Nations ‘Protect, Respect and Remedy’: A Framework for Business and Human Rights (A/HRC/17/31, OHCHR 2011) www.ohchr.org/EN/Issues/TransnationalCorporations/Pages/Reports.aspx (UNGPs).

4 John H Knox, ‘Human Rights Principles and Climate Change’ in Cinnamon Carlarne, Kevin R Gray and Richard Tarasofsky (eds), Oxford Handbook of International Climate Change Law (OUP 2015) 1 http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2523599.

5 ‘Statement of the United Nations Special Procedures Mandate Holders on the Occasion of Human Rights Day’ (Office of the United Nations High Commissioner for Human Rights, 10 December 2014) www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=15393&LangID=E. When this statement was made, Knox was serving as the Independent Expert on human rights and the environment. He subsequently accepted a three-year mandate as Special Rapporteur. Knox is the Henry C Lauerman Professor of International Law at the School of Law, Wake Forest University, http://law.wfu.edu/faculty/profile/knoxjh/ accessed 2 September 2015. See also the United Nations Special Rapporteurs on the rights of persons with disabilities, Catalina D Aguilar; the issue of human rights obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment, John H Knox; extreme poverty and human rights, Philip Alston; the human right to safe drinking water and sanitation, Léo Heller; and the Independent Expert on human rights and international solidarity, Virginia Dandan, ‘The Effects of Climate Change on the Full Enjoyment of Human Rights’ (Paper provided to the Climate Vulnerable Forum in response to the invitation of its chair, the Philippines, Office of the United Nations High Commissioner for Human Rights, Special Procedures of the United Nations Human Rights Council, 30 April 2015) http://perma.cc/8XHE-R2UK.

6 Special Rapporteurs, ‘The Effects of Climate Change’ (n 5 above).

7 Knox, ‘Human Rights Principles’ (n 4 above) 6 (emphasis in original). 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, John H. Knox: Mapping Report (UNHRC United Nations Mandate on Human Rights and the Environment, 30 December 2013) 8–12 http://srenvironment.org/mapping-report-2014-2/ (‘Human Rights Obligations’). This report describes state procedural obligations as including ‘duties (a) to assess environmental impacts and make environmental information public; (b) to facilitate public participation in environmental decision-making, including by protecting the rights of expression and association; and (c) to provide access to remedies for harm’ at 8, para 29. See also John H Knox, ‘Human Rights Obligations to Protect the Environment’ (Keynote speech at the UNITAR-Yale Conference on Environmental Governance and Democracy: Human Rights, Environmental Sustainability, Post-2015 Developmental Agenda, and the Future Climate Regime, 5 September 2014) 5–8 http://perma.cc/4NF4-GXXP; John H Knox, ‘Statement by John H. Knox, Independent Expert on Human Rights and the Environment at “The Development of Environmental Human Rights”’ (Office of the United Nations High Commissioner for Human Rights, 6 November 2014) www.ohchr.org/en/NewsEvents/Pages/DisplayNews.aspx?NewsID=15274&LangID=E.

8 Knox, ‘Human Rights Principles’ (n 4 above) 9, 11–12.

9 Knox, ‘Human Rights Obligations’ (n 7 above) 11.

10 UNGPs (n 3 above) 6–7 (Principle 1), 7 (Principle 2), 8–13 (Principles 3–10), 22–23 (Principle 25), 23–24 (Principles 26 and 27).

11 Ibid, 7 (Commentary to Principle 2); Sara L Seck, ‘Canadian Mining Internationally and the UN Guiding Principles for Business and Human Rights’ (2011) 49 Can YB Intl L 51, 94–97, 105–13.

12 UNGPs (n 3 above) 13 (Principle 11).

13 Ibid, 13 (Commentary to Principle 11), 4 (para 6), describing it as ‘the basic expectation that society has of business in relation to human rights’.

14 UNGPs (n 3 above) 13 (Principle 12).

15 Ibid, 14 (Principle 13).

16 Ibid, 14 (Commentary to Principle 13). See further Ibid, 16 (Principle 17(a) on human rights due diligence).

17 Ibid, 14 (Principle 14).

18 Ibid, 15 (Principle 15).

19 Ibid, 16–24 (Principles 16–21).

20 Ibid, 18–19 (Commentary to Principle 17).

21 Michael Torrance, ‘Persuasive Authority Beyond the State: A Theoretical Analysis of Corporate Social Responsibility Norms as Legal Reasons within Positivist Legal Systems’ (2011) 12 German LJ 1573; Yousuf Astab, ‘The Intersection of Law and Corporate Social Responsibility: Human Rights Strategy and Litigation Readiness for Extractive-Sector Companies’ (2014) 60 Rocky Mt Min L Inst 19–1.

22 Sara L Seck, ‘Business, Human Rights, and Canadian Mining Lawyers’ (2015) 56 Can Bus LJ 208, 216–22.

23 Organisation for Economic Co-operation and Development, OECD Guidelines for Multinational Enterprises (OECD 2011) 31–34 https://mneguidelines.oecd.org/text/.

24 International Finance Corporation, Performance Standards on Environmental and Social Sustainability (IFC 2012) Performance Standard 1, Performance Standard 3 www.ifc.org/wps/wcm/connect/topics_ext_content/ifc_external_corporate_site/ifc+sustainability/our+approach/risk+management/performance+standards/environmental+and+social+performance+standards+and+guidance+notes; International Finance Corporation, International Finance Corporation's Guidance Notes: Performance Standards on Environmental and Social Sustainability (IFC 2012) www.ifc.org/wps/wcm/connect/topics_ext_content/ifc_external_corporate_site/ifc+sustainability/our+approach/risk+management/performance+standards/environmental+and+social+performance+standards+and+guidance+notes.

25 Equator Principles Financial Institutions, The Equator Principles (June 2013) www.equator-principles.com/index.php/equator-principles-3.

26 International Organization for Standardization, ISO 26000:2010 Guidance on Social Responsibility (ISO 2010) ch 4 www.iso.org/iso/home/standards/iso26000.htm.

27 See, eg, André Abadie and Michael Torrance, ‘Performance Standard One: Assessment and Management of Environmental and Social Risks and Impacts’ in Michael Torrance (ed), IFC Performance Standards on Environmental & Social Sustainability: A Guidebook (LexisNexis Canada 2012) 37; Tina Costas, ‘Performance Standard Three: Resource Efficiency and Pollution Prevention’ in Michael Torrance (ed), IFC Performance Standards on Environmental & Social Sustainability: A Guidebook (LexisNexis Canada 2012) 120, 128–35 (IFC Guidebook).

28 Helena Kennedy, ‘Five Ways to Achieve Climate Justice’ The Guardian (London, 12 January 2015) www.theguardian.com/sustainable-business/2015/jan/12/achieve-climate-justice-human-rights.

29 IBA, Climate Justice Report (n 1 above) 16.

30 See generally ibid, ch 3.

31 Ibid, 127; see also United Nations Commission on International Trade Law Secretariat, A Guide to UNCITRAL: Basic Facts About the United Nations Commission on International Trade Law (UNCITRAL Secretariat 2013) 15 http://perma.cc/G5XC-DK7G, whereby ‘The Model Law on International Commercial Arbitration, which could be described as a procedural instrument, provides a discrete set of interdependent articles.’

32 IBA, Climate Justice Report (n 1 above) 127; see also United Nations Commission on International Trade Law, ‘UNCITRAL Model Law on International Commercial Arbitration (1985), with Amendments as Adopted in 2006’ (UNCITRAL 2015) www.uncitral.org/uncitral/en/uncitral_texts/arbitration/1985Model_arbitration_status.html, where to date 69 states have adopted the UNCITRAL Model Law, for a total of 99 trade jurisdictions.

33 IBA, Climate Justice Report (n 1 above) 127.

34 Ibid, 28.

35 Ibid, 138–39.

36 Ibid, 148.

37 Ibid.

38 Ibid.

39 Ibid, 148–49. Specifically, the rationale given for the third recommendation is that ‘internal assessments of potential environmental or human rights impacts can fall short of a complete picture of the actual impact on nearby and distant communities’.

40 Ibid, 148.

41 Ibid, 149.

42 ‘Mining and Protected Areas: Position Statement’ (ICMM 2003) http://perma.cc/L8UM-X8JX. The International Council on Mining and Metals (ICMM) was created in 2001 as a response to a multi-stakeholder initiative on sustainable mining. It is a membership organisation with members drawn from global company and industry associations. ICMM, ‘About Us’ www.icmm.com/about-us/about-us accessed 2 September 2015. See alternatively IFC Performance Standard 6 with regard to ‘no net loss of biodiversity’ (where feasible) as discussed in Torrance, IFC Guidebook (n 27 above) 247–49.

43 On the atmosphere as a global public trust see Mary Christina Wood, ‘Atmospheric Trust Litigation’ in William CG Burns and Hari M Osofsky (eds), Adjudicating Climate Change: State, National, and International Approaches (CUP 2009); Mary Christina Wood, Nature's Trust: Environmental Law for a New Ecological Age (CUP 2014).

44 IBA, Climate Justice Report (n 1 above) 131. The Precautionary Principle is not defined in the IBA Climate Justice Report. A frequently quoted definition is Principle 15 of the 1992 Rio Declaration: ‘In order to protect the environment, the precautionary approach shall be widely applied by States according to their capabilities. Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation.’ See also definition of the Precautionary Principles in the Oslo Principles (n 75 below).

45 IBA, Climate Justice Report (n 1 above) 132. For a detailed proposal of what a common law tort for negligent climate adaptation might well appear as, see also Maxine Burkett, ‘Legal Rights and Remedies’ in Michael B Gerrard and Katrina Fischer Kuh (eds), The Law of Adaptation to Climate Change: United States and International Aspects (ABA 2012) ch 25; Maxine Burkett, ‘Litigating Climate Change Adaptation: Theory, Practice, and Corrective (Climate) Justice’ (2012) 42 Env LR 11144; Maxine Burkett, ‘Duty and Breach in an Era of Uncertainty: Local Government Liability for Failure to Adapt to Climate Change’ (2013) 20 Geo Mason L Rev 775.

46 Donald N Zillman, Alastair R Lucas and George (Rock) Pring (eds), Human Rights in Natural Resource Development: Public Participation in the Sustainable Development of Mining and Energy Resources (OUP 2002); Rachel Davis and Daniel Franks, Costs of Company-Community Conflict in the Extractive Sector (Harvard Kennedy School 2014).

47 Organisation for Economic Co-operation and Development (OECD), ‘Due Diligence Guidance for Meaningful Stakeholder Engagement in the Extractives Sector, Draft for Comment’ (April 2015) 4 http://perma.cc/E6PS-PGMA (Due Diligence Guidance Draft).

48 Ibid, 11.

49 Ibid, 46, Annex B ‘Engaging with Indigenous Peoples’. See also IFC, Performance Standards (n 24) Performance Standard One (affected community engagement), Performance Standard Seven (indigenous peoples’ right to free prior informed consent); Report of the Special Rapporteur on the Rights of Indigenous Peoples, James Anaya, Extractive Industries and Indigenous Peoples (A/HRC/24/41, UNHRCOR 2013) http://unsr.jamesanaya.org/study/report-a-hrc-24-41-extractive-industries-and-indigenous-peoples-report-of-the-special-rapporteur-on-the-rights-of-indigenous-peoples.

50 OECD, Due Diligence Guidance Draft (n 47 above) 11, 30–33 (Table II(1) identifying potential human rights impacts of extractive industries).

51 Abadie and Torrance, ‘Performance Standard One’ (n 27 above); see however Costas, ‘Performance Standard Three’ (n 27 above) 120, where she notes that as ‘forecasts of climatic changes over a project life-time (often more than 20 years) are either unavailable, unreliable, or can be conflicting’ in many parts of the world, a ‘significant technological burden’ is imposed on the companies seeking ‘to determine if a new development is likely to be affected by, or exacerbate the effects of, climate change’.

52 IBA, Climate Justice Report (n 1 above) 149.

53 For a detailed review of issues with implementing Principle 10 of the Rio Declaration on Environment and Development, see Forum for a Sustainable Future, Review of Implementation of the Rio Principles (UN-DESA 2011) 67–73 http://perma.cc/M5ZY-W8KV. See also The Access Initiative, ‘Environmental Democracy Index’ (Environmental Democracy 2015) www.environmentaldemocracyindex.org/, which tracks states’ laws protecting transparency, participation and justice in environmental decision-making; cf Meinhard Doelle, ‘Climate Change and Human Rights: The Role of International Human Rights in Motivating States to Take Climate Change Seriously’ (2004) 1 Mq J Intl Comp Env L 1 http://ssrn.com/abstract=2502276; or cf Albert Koehl, ‘EA and Climate Change Mitigation’ (2010) 21 J Env L & Prac 181. But see Costas, ‘Performance Standard Three’ (n 27 above) on informational challenges.

54 IBA, Climate Justice Report (n 1 above) 149–50.

55 Ibid, 151–52.

56 Ibid, 152 (emphasis in original).

57 Ibid.

58 Ibid.

59 Ibid, 176.

60 Ibid, 153–54.

61 See, eg, OECD, OECD Guidelines (n 23 above) and IFC, Performance Standards (n 24 above) as discussed earlier.

62 IBA, Climate Justice Report (n 1 above) 148.

63 Report of the Independent Expert on the Issue of Human Rights Obligations Relating to the Enjoyment of a Safe, Clean, Healthy and Sustainable Environment, John H Knox, Compilation of Good Practices (A/HRC/28/61, OHCHR 2015) 21 http://srenvironment.org/2015/03/02/annual-report-to-the-human-rights-council-2/.

64 Ibid, 21.

65 Report of the Special Representative of the Secretary-General on the issue of human rights and transnational corporations and other business enterprises, John Ruggie, Protect, Respect and Remedy: A Framework for Business and Human Rights (A/HRC/8/5, OHCHR 2008) para 7 www.ohchr.org/EN/Issues/TransnationalCorporations/Pages/Reports.aspx. Ruggie is the Berthold Beitz Professor of Human Rights and International Affairs at Harvard University's Kennedy School of Government and an Affiliated Professor of International Legal Studies at Harvard Law School www.hks.harvard.edu/about/faculty-staff-directory/john-ruggie accessed 2 September 2015.

66 See Elinor Ostrom, ‘A Polycentric Approach for Coping with Climate Change’ (2009) Policy Research Working Paper, World Bank, 5 http://dx.doi.org/10.1596/1813-9450-5095. Here she states that ‘The classic theory of collective action predicts that no one will change behavior and reduce their energy use unless an external authority imposes enforceable rules that change the incentives faced by those involved. This is why many analysts call for a change in institutions at the global level.’

67 Ibid, 12, 29–31. Leakage refers to either leakage by production, where GHG producing activities relocate out of a jurisdiction that limits GHG emissions to a jurisdiction that has fewer limits, or market leakage, which ‘refers to changes in price structure that may occur as a result of restrictions on harvesting from forests’. These restrictions may decrease the volume of timber cut in designated areas but may also create an incentive to relocate extraction to exploit forest resources in another jurisdiction.

68 Vincent Ostrom, ‘Polycentricity – Part 1’ in Michael McGinnins (ed), Polycentricity and Local Public Economies (University of Michigan Press 1999) 52–74 (as cited in Ostrom, ‘Polycentric Approach’ (n 66) 33).

69 Ostrom, ‘Polycentric Approach’ (n 66 above) 39.

70 IBA, Climate Justice Report (n 1 above) 8; cf pages 25–31.

71 Oslo Principles, Oslo Principles on Global Climate Change Obligations www.osloprinciples.org/principles/ (Oslo Principles, 2015).

72 Ibid, 1.

73 Ibid. Note that ‘enterprises’ is not defined.

74 Ibid.

75 Ibid, 3: ‘a. The Precautionary Principle requires that: 1) GHG emissions be reduced to the extent, and at a pace, necessary to protect against the threats of climate change that can still be avoided; and 2) the level of reductions of GHG emissions required to achieve this, should be based on any credible and realistic worst-case scenario accepted by a substantial number of eminent climate change experts. b. The measures required by the Precautionary Principle should be adopted without regard to the cost, unless that cost is completely disproportionate to the reduction in emissions that will be brought about by expending it.’

76 Oslo Principles, ‘Oslo Principles Commentary’ (Oslo Principles, 2015) 81, 83–84 www.osloprinciples.org/oslo-principles-commentary/.

Additional information

Funding

The authors would like to thank CIGI ILRP for funding support.