Anna Triponel | 17 June 2021
This article captures remarks delivered by Anna Triponel at the ‘Strategies to Align Human Rights and the Environment Series’ organised by the The New York City Bar Association (NYCBA) that took place on June 17th 2021.
Thank you Viren. And a special thanks to The New York City Bar Association Business & Human Rights Working Group for organising such an important, and timely, conversation.
I feel at home talking to you, because as Viren mentioned, I started my work on business and human rights with John Ruggie as a lawyer in NY, and loved the talks I went to as a member of the New York City Bar Association.
Two years ago, I had an epiphany moment while I was completing the sustainability management course at Cambridge. I suddenly realised that there no issue more important today for human rights than transforming rapidly to a net zero future. And doing so in a people-centred fashion.
I vowed there and then to make it my priority to raise awareness amongst business – and their advisors – about climate change, and to equip them with knowledge that would support them in breaking down silos between their environmental, climate and human rights work.
The ‘Business, People and Planet’ listserv I launched in January 2020 has since attracted hundreds of subscribers, and there is now not a week that goes by without someone reaching out to me to discuss this topic.
So, there is a clear need, and a strong desire, to break down silos, build bridges and create synergies.
Let me start by taking a step back to explain why this is so critical for each and every one of us here today.
Just this week…
Just this Tuesday, two days ago, scientists returned to Germany from a year-long expedition in the Arctic researching the effects of climate change at the North Pole.
The results are alarming. They found that the Arctic Ocean ice had retreated faster in the spring of 2020 – than since the beginning of records. They warned us in their press conference that it is possible that we have already passed the important tipping point of the disappearance of summer sea ice in the Arctic.
Beware of the life-threatening dominoes
Why are tipping points such a big deal?
Because we can do something about the climate now. But we soon won’t be able to.
And once we’ll have reached tipping points, we will trigger a cascade of unstoppable events that will have devastating effects on both the planet as well as people who live on it.
The human rights impacts of climate change are clear – from communities close to the sea being displaced; to growing hunger; farmer depression and suicide, and growing unrest and violence as communities compete for resources.
But what scientists have found, is that climate change does not happen in a linear fashion. It happens more as lurches, with tipping points being reached. With each tipping point being reached, others are triggered – creating an irreversible shift to a hotter world.
So not only will the human rights impacts we are seeing accelerate and amplify, we are also putting into question the most fundamental right of all, the right to life. Already in 2019, scientists found that we may have crossed a series of climate tipping points, resulting in “an existential threat to civilisation.”
The transformation of business, in the words of business
What this means for business is clear: business – alongside government and civil society – must change the systems that have created the challenges we now face – and change them so profoundly that we can legitimately call it transformation.
In fact, these are not my words. These are the words of 40 CEOs –part of the World Business Council for Sustainable Development.
Faced with a climate emergency, mounting inequality and nature in crisis, business leaders have recognised the need for transformation. And they specifically suggest pathways that would enable all companies from key sectors to transform.
But importantly, to transform in a way that is firmly grounded in human rights. For how would we feel if we were living within planetary boundaries, but the price to be paid had been giving up on people’s fundamental rights?
This is not a theoretical question, as the communities being displaced for renewable energy projects, children picking plastic for recycled plastic, and workers from the brown economy losing their jobs can attest to.
Taking a holistic sustainability due diligence approach
So we have explored that our warming planet and other environmental degradation harms people, and that the responses companies put in place to respond to climate change can also harm people.
What’s a company to do?
Take a holistic approach to due diligence. Consider environmental and human rights due diligence as part of a broader sustainability due diligence approach. This will help companies uncover important inter-linkages and take more informed and nuanced decisions.
Fortunately, we have the frameworks. We’ve discussed here the UNGPs and the OECD Guidelines.
And we have synergies between environmental due diligence and human rights due diligence. Let me pull out a few areas I think will be particularly interesting for you as lawyers.
Which business relationships are covered by due diligence?
From a lawyers’ perspective, we are accustomed to delimiting company liability based on contractual and legal parameters. That’s how I was trained as a lawyer. When it comes to human rights due diligence, companies are looking at their full value chain – regardless of contractual obligations. And companies are also expanding their environmental due diligence to capture a full value chain perspective.
Interestingly, the Dutch court in the recent Royal Dutch Shell case essentially said: high carbon emissions have severe human rights impacts. Your company is expected to look at where the risk of harm is the most severe in your value chain – because that’s what the UNGPs and the OECD Guidelines say. And therefore you cannot not look at your scope 3 emissions. This is in essence a company’s human rights responsibility being applied to a company’s environmental performance to justify taking a full value chain approach.
Which standards capture the impact against which risks are being assessed?
To understand the kinds of impacts companies are having, you obviously need to have a baseline against which you are evaluating the impacts. On the human rights side, the UNGPs don’t reinvent the wheel: companies assess their impacts against human rights that are recognised in international human rights law.
On the environmental side, there is a significant opportunity here. We are seeing calls on the EU to clearly define the international environmental standards that companies would look to in their due diligence, in consultation with stakeholders, while requiring the application of key principles of environmental law and ensuring that both direct and indirect emissions are included in adverse climate impacts.
What is the timeframe and the location for measuring the impact?
I’ll touch upon a final point that I personally find fascinating. When and where is this impact being assessed? Looking at risks to people and planet today will yield a different result than looking at impacts that could occur in a year’s time, in ten years’ time, in a generation, or the next generation. I often hear that human rights impacts tend to be more immediate and local, while environmental impacts tend to be longer-term and happen further away. As we bring environmental and human rights due diligence together, we will need to explore this further.
Sell the Dream
I’ll conclude with this. During my course at Cambridge, we were taught that to be able to do anything about an issue that matters, we needed to sell the vision. Sell the climate dream, not the climate hell, so to speak.
So here’s my vision for what companies that take a holistic approach to sustainability would look like:
- The Board of Directors has at least one director that has expertise on these topics, and understands how these areas inter-connect
- Senior levels of the business understand the urgency and connections, and benefit from externalviews on both areas. Siloed committees that support senior managers are no longer siloed
- The company’s strategy encompasses a holistic approach to sustainability
- KPIs, budgets and programming in turn track these synergies
- There is designated accountability and responsibility for exploring the connections between the environment, climate and human rights
- There are measures to bring human rights and environmental expertise together in a cross-functional manner at appropriate moments in times (for example, when entering a new project)
- Human rights specialists have a baseline understanding of how their expertise intersects with environmental and climate areas; and vice versa
- External stakeholder engagement takes places across areas of expertise to enhance the identification of synergies
- Remedy exists for longer-term human rights impacts resulting from environmental degradation
- Outward communication conveys lessons learned on adopting a holistic strategy
So next time you’re advising a company, ask them: What do you have in place that enables your company to take a holistic approach to sustainability?
Thank you, and I look forward to the discussion.