Week of 11 January 2021
Human rights due diligence is holistic and includes – you guessed it - climate risk
The well-being of people and the health of the planet are closely intertwined. There is a growing recognition within the international community that in order to protect people from the worst effects of climate change—and to prevent further global warming caused by people—the climate and human rights agendas need to align. A new research paper argues that human rights due diligence is holistic and includes climate risk. This means that climate risk should be integrated into companies’ human rights and environmental risk assessment. This in turn will help companies tackle the interrelated climate, environmental and human rights challenges as well as help them prepare for regulatory and judicial developments.
As the international community increasingly recognises the close links between human well-being and environmental health, the global human rights and climate agendas are beginning to converge. A new research paper by Chiara Macchi, Marie Skłodowska-Curie Postdoctoral Researcher in the Law Group at Wageningen University, makes the case that, over the last ten years there has been a “consolidating consensus in the international community about the need to treat climate change and its consequences as a human rights issue.”
In brief, the author argues that:
- There is a consolidating concept of ‘climate due diligence’
- This concept is based on (1) emerging climate change litigation we are seeing and (2) a holistic interpretation of human rights due diligence (HRDD). Indeed, HRDD “must be interpreted in the light of mutually reinforcing principles of environmental law, climate law and human rights law”
- Climate due diligence therefore is “a necessary dimension of HRDD as a standard of conduct, as well as a component of HRDD as a business process.” This means that all companies “regardless of the size and sector, are required to assess their ‘climate risk’ as part of their human rights and environmental risk assessment.”
- Companies’ ‘integrated approach to risk assessment’ includes:
- “taking into account not only the level of their emissions, but also the climate impacts linked to them by their business relationships (e.g., corporations in their investment portfolio or supply chains)”
- Considering “climate-related vulnerabilities of territories and communities, especially when the corporation’s operations impact on local natural resources.”
- In turn, the results of this risk assessment “will determine the type and complexity of the climate due diligence process”
- Further, by integrating climate due diligence into their human rights-related processes and processes, companies will also be prepared for regulatory and judicial developments
Below is some further information from the paper.
A growing number of lawsuits hold companies accountable for climate change using the concept of due diligence, including human rights due diligence
- While only a few lawsuits have been filed against corporations for their actions, or lack of action, on climate change, the author believes that these are significant because they rely on a concept of due diligence rooted in human rights law and the UN Guiding Principles on Business and Human Rights.
- For example, a 2019 case filed by a group of Dutch NGOs against oil and gas company Shell was based on the idea that the company had violated its “duty of care anchored in Dutch law, human rights law and the Paris Agreement.”
- In another case, 14 French cities and a coalition of NGOs filed a lawsuit against oil and gas company Total under the French Duty of Vigilance Law, arguing that the company’s inaction on climate change reflected a failure to fulfill its duty of vigilance (which primarily relates to human rights) to address the climate impacts of its business.
- In 2015 Greenpeace South Asia and other local organisations filed a petition with the Philippines Commission on Human Rights against “47 ‘Carbon Majors’ – including some European corporations such as BP, Shell, Total, RWE, Repsol, LaFarge, Heidelberg Cement and Eni.” The petition focuses on the adverse impacts of global warming on people and “argues that, by taking investment decisions incompatible with the 2°C goal, the corporations are ‘failing to prevent human rights impacts that are directly linked to their operations, products, or services’ by their business relationships”—i.e. a failure to conduct adequate human rights due diligence.
Climate change lawsuits are not limited to companies—even more progress has been made in cases against states finding a basis in human rights law
- The paper states that “[c]limate change strategic litigation is finding a ‘a novel and unique anchorage’ in the Paris Agreement and in the related national commitments,” creating a new legal avenue to file cases against governments for their own failures to address climate change.
- For instance, a lawsuit against the government of the Netherlands (the Urgenda case) cites the failure of the Dutch government to work towards the more ambitious GHG emissions goals called for by the Paris Agreement and by national climate legislation. Interestingly, the Dutch Court of Appeals – while concluding that the Dutch government was doing too little to prevent climate change – found that the plaintiffs could directly invoke articles from the European Convention on Human Rights (and in particular article 2 which sets out the right to life and article 8 which sets out the right to respect for an individual’s private and family life, home and correspondence.) This understanding was confirmed by the Supreme Court of the Hague in December 2019 “confirm[ing] what can undoubtedly be termed as a landmark decision in the realm of climate change and human rights.”
- Courts in Ireland, Belgium, France, Germany, the UK, Sweden, Greece, the Czech Republic, Austria and Portugal have taken up similar questions on the legal responsibility of governments to act on climate change (although with varying levels of success).
- Interestingly, the author points to indications that “the climate change dimension of states’ responsibility under international human rights law are likely to come, in the near future, from the UN human rights treaty bodies”, pointing to the Human Rights Committee’s first petition addressing adverse human rights impacts from Australia’s duty to address climate change, and the Committee on the Rights of the Child’s upcoming examination of a communication against states that frames climate change as a ‘children’s rights crisis’.
Climate due diligence is an “inherent dimension of human rights due diligence”
- The paper details the arguments for interpreting human rights due diligence holistically in such a way that it includes climate risk. In particular, “[p]recisely because climate, environmental and human rights challenges are fundamentally interrelated, a holistic approach to HRDD is needed, one in which the standard of conduct is interpreted in the light of environmental law, climate law, as well as international human rights law.”
- When applying the UNGPs’ framework for responsibility, a “corporation contributing in a small percentage to global GHG emissions might be seen as just ‘linked to’ the adverse impacts caused by climate change, and not necessarily ‘contributing’ to them. However, in light of the severity of climate change and of the widely available knowledge about its likely and actual consequences, many of which are large scale and irremediable, a corporation that fails over time ‘to take reasonable steps to seek to prevent or mitigate the impact […] could eventually be seen to be facilitating the continuance of the situation’, thus eventually finding itself in a position of ‘contribution.”
- Further, “the UNGPs do not allow corporations to disregard their climate due diligence based on the relatively small size of their emissions.”
- And “in the same way as, under the UNGPs, a corporation’s failure to address its human rights impacts cannot be offset by the corporation’s voluntary corporate social responsibility initiatives, it is doubtful that purchasing a carbon offset would extinguish the corporation’s responsibility to stop its contribution to global warming.”
Taking action: So, what is the expectation for companies?
The paper points to a few actions that companies should take:
- Companies should treat climate due diligence as they do human rights due diligence by integrating it into their business processes and policies. What’s more, “the process of climate due diligence, as a component of HRDD, should have a similar structure and be integrated as much as possible into the former.”
- “Besides big emitters, all businesses, regardless of their size and sector, should have in place policies and processes capable of capturing and addressing their actual and potential climate-related impacts.” A “necessary step” is risk assessments that “identify not only the level of a corporation’s GHG emissions, but also the climate change-related vulnerabilities of workers, individuals and communities, for instance when deploying projects that could put a burden on local natural resources. Failing to consider environmental and human rights impacts as interlinked might lead to ineffective or counterproductive actions and, ultimately, higher costs.”
- This also means that “Human Rights Impact Assessments (HRIAs) and Environmental and Social Impact Assessments (ESIAs) should be duly integrated and account for both actual and potential risks.”
- Companies should set concrete climate targets and should integrate these “into the policy commitment that the UNGPs require to adopt at the senior management level, alongside human rights targets. The UNGPs also require monitoring the results of steps taken as well as communicating them to the public.”
- Finally, companies should prepare for the oncoming rise in regulations requiring mandatory human rights and environmental due diligence, especially in Europe where laws are forthcoming or under discussion at the EU level, in the UK, in Switzerland, In Germany and elsewhere.
Read the full paper here: Chiara Macchi, The Climate Change Dimension of Business and Human Rights: The Gradual Consolidation of a Concept of ‘Climate Due Diligence,’ Business and Human Rights Journal (21 December 2020)