Draft Guidelines on Human Rights and the Environment – Submission in Response to the Call for Inputs by UN Special Rapporteur
Rationale for the submission
We welcome the Draft Guidelines on Human Rights and the Environment (hereinafter Draft Guidelines) and highly regard the work of the UN Special Rapporteur on the issue of human rights obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment. This submission aims to support this work and provide further insights to help ground it into current international law and policy developments. Our recommendations seek to frame the Draft Guidelines within the current developments regarding business and human rights, environmental rights, children’s rights and international criminal justice.
International human rights law and environmental law have advanced greatly, both substantively and procedurally, to protect the rights of those affected by environmental damage and guarantee the enjoyment of a safe, clean, healthy and sustainable environment. These advancements have both widened the scope of State obligations and increased the responsibilities of third parties, in particular corporations, towards human rights and the environment.
In this regard, we believe it is important that the Draft Guidelines further reflect these advancements and more decisively highlight the role of the private sector in harming human rights and the environment, and addressing such harms. The harmonisation of language is particularly important in order to consolidate increasing State human rights obligations and efforts to hold corporations accountable for the impact of their actions and business relations. This is why this submission recommends the Draft Guidelines include some of the terms and concepts which are today consolidated elements of the business and human rights scholarship and practice.
It is important that the Draft Guidelines builds on other international legal instruments which are today widely accepted by the international community, including States, Intergovernmental Organisations, NGOs and corporations themselves. These include the Convention on the Rights of the Child (1990); the Aarhus Convention on Access to Information, Public Participation and Decision-Making and Access to Justice in Environmental Matters (1998), the UN Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law (2005); UN Guiding Principles on Business and Human Rights (2011), OEDC Guidelines on Multinational Enterprises (2011), the UNICEF-Save the Children-Global Compact Children Rights and Business Principles (2012); the IFC Performance Standards on Environmental and Social Sustainability (2012); the World Bank Environmental and Social Safeguard Policies (2017) and the Policy Paper of the International Criminal Court Office of the Prosecutor on Case Selection and Prioritisation (2016), as well as the work of the UN Working Group on Business and Human Rights, and previous reports from the Special Rapporteur himself.
Current gaps in the Draft Guidelines
1. State duty to protect from harm by third parties, including corporations
Most of the violations of human rights related to harm to the environment are directly connected with corporate activity. It is the private sector which produces the highest volume of pollution and harmful activity which has a direct impact on the full enjoyment of human rights. The State duty to protect human rights against third party action is long established in international human rights, and has been further consolidated since the publication of the UN Guiding Principles on Business and Human Rights and States National Action Plans to implement them. Considering this, we recommend that the Draft Guidelines includes a reference to the private sector, specifically corporations, in the General Obligations section, in order to reinforce this existing duty and harmonise language with current developments in international law.
2. Corporate responsibility to respect
It is widely accepted today that business have a responsibility, which is no longer exclusively a social expectation, to respect human rights and conduct themselves with due diligence in the development of their commercial activities and partnerships. Pillar II of the UN Guiding Principles on Business and Human Rights establishes the basic elements of this responsibility, which has been consolidated and further developed by other intergovernmental instruments, such as the OECD Guidelines on Multinational Enterprises, the EU Corporate Social Responsibility Strategy, National Action Plans on the implementation of the UN Guiding Principles on Business and Human Rights and prolific corporate statements and practice. Considering this, we recommend adding a fourth General Obligation establishing that every corporation has the responsibility to respect human rights from harm produced by environmental damage.
3. Right to remedy and access to justice
The right to remedy and its correlating State duty to provide access to justice are well established both in international human rights law and environmental law. The Aarhus Convention on Access to Information, Public Participation and Decision-Making and Access to Justice in Environmental Matters does so in relation to public decision-making and it is the core of Pillar III of the UN Guiding Principles on Business and Human Rights, obliging States to guarantee an effective remedy and corporations to participate in remediation efforts. State obligations to provide remedy and reparations for victims are further reinforced in the case of gross violations of human rights and serious violations of international humanitarian law, by UN Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law. The Draft Guidelines should build on the work of the Special Rapporteur himself, who in 2013 extensively elaborated on the matter (A/HRC/28/61, 3 February 2015, p. 12 et seq.). As well established, victims’ lack of resources and the inequality of arms brought by it is one of the most prevalent obstacles to access to justice. We suggest the Draft Guidelines add a strong reference to Guideline 8 in the part on Procedural Obligations to States obligation to guarantee access to justice, by providing the adequate procedures, resources and support to victims of environmental and human rights harm.
4. Rights of those who are most vulnerable to environmental harm: children
As the Draft Guidelines highlight, children are particularly vulnerable to environmental harm. The Convention on the Rights of the Child recognizes the right of children to a healthy and safe environment, as one of the elements to ensuring the healthy development of each child. The UNICEF-Save the Children- Global Compact Principles on Business and Children establish specifically that “All business should…[r]espect and support children’s rights in relation to the environment and to land acquisition and use” (Principle 7). When developing the corporate responsibility to respect in relation to children’s rights the Principles elaborate respecting children’s rights in relationship to the environment as: “i. When planning and implementing environmental and resource-use strategies, ensure that business operations do not adversely affect children’s rights, including through damage to the environment or reducing access to natural resources; ii. Ensure the rights of children, their families and communities are addressed in contingency plans and remediation for environmental and health damage from business operations, including accidents”. Therefore, we suggest a reference to the duty of the State to regulate business to specifically respect children’s rights and remedy harm (in Guideline 14) as well as a direct reference to the corporate responsibility to respect children’s rights in relation to the environment and contribute to harm remediation (by adding a further Guideline).
5. Rights of those who are most vulnerable to environmental harm: conflict situations and situations of mass and systematic violence
During situations of armed conflict, violence in weak governance zones and mass and systematic abuses of human rights, States have a heightened duty to protect human rights. The UN Guiding Principles on Business and Human Rights further develop the obligations of States to engage with business to identify, prevent and mitigate the human rights-related risks of their activities and business relationships in these environments as well as provide adequate assistance to business enterprises to assess and address the heightened risks of abuses; deny access to public support and services for a business enterprise that is involved with gross human rights abuses and refuses to cooperate in addressing the situation; and ensure that their current policies, legislation, regulations and enforcement measures are effective in addressing the risk of business involvement in gross human rights abuses (UN GP 7). This applies too to violations resulting from environmental harm. As argued above, the duty of the State to provide remedy, access to justice and reparations to victims in these situations is well established in international human rights law. Furthermore, the ICC Prosecutor, in her recent Policy Paper on Case Selection and Prioritisation (on this, please see a short blog post here and a more detailed article here), has highlighted how in order to consider the cases which merit prioritisation “the impact of the crimes may be assessed in light of, inter alia, the increased vulnerability of victims, the terror subsequently instilled, or the social, economic and environmental damage inflicted on the affected communities” (para. 41). In this context, the Office of the Prosecutor will give particular consideration to prosecuting crimes under the Rome Statute (war crimes, crimes against humanity and genocide) that are committed among others by means of, or that result in, inter alia, the destruction of the environment (ibid). Following these considerations, we recommend that the Draft Guidelines contain a reference to persons who are vulnerable due to the context in which the violations take place including armed conflict, weak governance and mass and systematic violence (Guideline 13). The obligations which the State is subject to in this case should include ensuring that the normative framework criminalises the actions which amount to international crimes in international criminal law (Guideline 14).
Recommendations
We recommend:
a. Including specific reference to current international law instruments which directly interact and further ground the Draft Guidelines in the Preamble. These include, among others:
- · Convention on the Rights of the Child (1990);
- · Aarhus Convention on Access to Information, Public Participation and Decision-Making and Access to Justice in Environmental Matters (1998);
- · UN Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law (2005);
- · UN Guiding Principles on Business and Human Rights (2011);
- · OEDC Guidelines on Multinational Enterprises (2011);
- · UNICEF-Save the Children-Global Compact Children Rights and Business Principles (2012);
- · IFC Performance Standards on Environmental and Social Sustainability (2012);
- · World Bank Environmental and Social Safeguard Policies (2017), and
- · Policy Paper of the International Criminal Court Office of the Prosecutor on Case Prioritisation and Selection (2016),
- · Reports from the UN Working Group on Business and Human Rights and the Special Rapporteur himself.
b. Including a reference to the private sector, specifically corporations, in the General Obligations section, in order to reinforce this existing duty and harmonise language with current developments in international law.
c. Adding a fourth General Obligation establishing that every corporation has the responsibility to respect human rights from harm produced by environmental damage.
d. Adding add a strong reference to Guideline 8, Procedural Obligations, to States obligation to guarantee access to justice, by providing the adequate procedures, resources and support to victims of environmental and human rights harm.
e. Inserting a reference in Guideline 14 to the State duty to regulate business to specifically respect children’s rights and remedy harm.
f. Adding a further Guideline (Guideline 16) which contains a direct reference to the corporate responsibility to respect children’s rights in relation to the environment and contribute to harm remediation.
g. Adding a reference to persons who are vulnerable due to the context in which the violations take place including armed conflict, weak governance and mass and systematic violence to Guideline 13.
h. Adding a reference to the obligations of States to ensuring that the normative framework criminalises the actions which amount to international crimes in international criminal law to Guideline 14.
Conclusions
We reiterate our support to the Draft Guidelines and our willingness to further ground them in international law developments for them to become an instrumental tool for the protection of human rights and the environment. We look forward to the final version of the Draft Guidelines.
My name is Nadia Bernaz and I am Associate Professor of Law and Governance at Wageningen University in the Netherlands.
My main area of research is business and human rights. I look at how corporations and businesspeople can be held accountable for their human rights impact through international, domestic and transnational processes.