Week of 10 May 2021
What does it mean to put the environment in human rights and environmental due diligence?
Our key takeaway: The fragmented patchwork of national and international environmental instruments means that upcoming EU law should look to define the adverse environmental impacts it expects companies to address as part of environmental due diligence
As the EU moves forward on its sustainable corporate governance directive, a joint briefing by Amnesty International, ClientEarth, European Coalition for Corporate Justive (ECCJ), Fern, Forest People’s Programme, Global Witness, ActionAid, Anti-Slavery International, Business & Human Rights Resource Centre, CIDSE, Fair Trade Advocacy Office, FIDH and WWF provides reflections on what it means to integrate environmental protection into companies’ due diligence requirements, alongside respect for human rights:
- The importance of not approaching the future directive solely through the lens of human rights. The civil society organisations state that the directive should recognise the connections between human rights and environmental protection, and that this requires an “integrated approach to standards, processes, enforcement and liability.” At the same time, they make clear that “approaching environment protection in the future directive solely through the lens of human rights would leave an important gap in the regulatory framework.” In other words, “[b]oth human rights and the environment deserve protection in and of themselves.”
- There is a need for the EU to provide definitions of the adverse impacts which should be addressed by environmental due diligence. Specifically, in addition to requiring respect for applicable domestic environmental law, the directive should “refer to the principles and normative standards of international environmental agreements.” The key principles include the prevention, precautionary, rectification-at-source and polluter-pays principles, and the normative standards include the Paris Agreement and the Convention on Biodiversity. At the same time, since these international instruments do not provide for all environmental impacts, the directive should specifically list the adverse environmental impacts it asks companies to address. The CSOs provide a suggested definition in their briefing.
- Enforcement of environmental protection should include a mix of civil, administrative and criminal liability of companies. The briefing suggests a range of different enforcement measures: (1) administrative liability: “competent authorities should be responsible for pursuing companies for failing to comply with their due diligence duties, both on their own initiative and in response to a complaint submitted by third parties”; (2) criminal liability which “would be appropriate for large and/or egregious cases of environmental harms and for certain illegal activities”; and (3) civil liability which should not be absolved by companies fulfilling their due diligence obligations.
For more, see Amnesty International, ClientEarth, European Coalition for Corporate Justive (ECCJ), Fern, Forest People’s Programme, Global Witness, ActionAid, Anti-Slavery International, Business & Human Rights Resource Centre, CIDSE, Fair Trade Advocacy Office, FIDH and WWF, Putting the Environment in Human Rights and Environmental Due Diligence (May 2021)