Business Responsibilities for Human Rights and Climate Change - A Contribution to the Work of the Study Group on Business and Human Rights of the International Law Association

This contribution to the work of the International Law Association’s Study Group on Business and Human Rights considers the relationship between business responsibilities for human rights and climate change. While it is now widely accepted that the adverse effects of climate change undermine the enjoyment of human rights, and that businesses have a responsibility to respect human rights, the relationship between business responsibilities for human rights and climate change is unclear. This paper first considers state duties to protect human rights from climate change harms, including harms arising from business activities, and second, considers how the business responsibility to respect rights might apply to climate harms experienced by the most vulnerable. In conclusion, the paper considers whether human rights violations arising from climate change may be considered salient risks that demand a response that aligns with the 2011 UN Guiding Principles

Climate Change and the Human Rights Responsibilities of Business Enterprises

The causes of climate change and solutions to it are inherently tied to non-state actors, including businesses. As multinational business enterprises are at the heart of global emissions, historical and current, it is vital to understand how the attribution of climate change impacts goes beyond the responsibilities of states. The first lawsuits targeting companies have begun. Meanwhile, businesses are increasingly focused on sustainability at different levels of their organizations, including by endorsement of business responsibilities for human rights. What independent responsibilities do business enterprises have when they undertake to respect the human rights of those who are vulnerable to climate harms

Lessons for the Treaty Process from the International Law Commission and International Environmental Law

The chapter examines Amnesty case studies in order to document the state practice identified and the gaps that need to be filled. The chapter will then consider the work of the ILC in its progressive codification of the law on prevention and loss allocation with respect to transboundary harm arising from hazardous activities, culminating in draft Articles8 and draft Principles,9 respectively, in 2001 and 2006. The modest claim of this chapter is that as the key United Nations body responsible for the progressive development and codification of international law, the work of the ILC should surely be of relevance to the treaty debate. Bringing together the Amnesty case studies with the work of the ILC, the chapter will consider whether in fact there are lessons for the treaty debate to be learned from this body of work

Book Review: The Governance Gap: Extractive Industries, Human Rights, And The Home State Advantage, by Penelope Simons & Audrey Macklin

Book review of The Governance Gap: Extractive Industries, Human Rights, And The Home State Advantage, by Penelope Simons & Audrey Macklin

Conceptualizing the Home State Duty to Protect Human Rights

The state duty to protect human rights from abuses by non-state actors including business is one of the three differentiated but complementary pillars that make up the UN Protect, Respect, Remedy Framework for Business and Human Rights. Yet the jurisdictional scope of the duty to protect is disputed. This chapter explores both the permissibility of home state regulation under jurisdictional principles of public international law and the existence of home state obligations to regulate and adjudicate transnational corporations to prevent and remedy human rights violations. Properly understood, the state duty to protect applies to all executive, legislative and judicial organs of government that are involved in creating and supporting the global economic order and thus the conduct of transnational corporations. The chapter concludes by briefly evaluating whether mandating compliance with the United Nations Principles of Responsible Investment could serve to fulfill the state duty to protect

Unilateral Home State Regulation: Imperialism or Tool for Subaltern Resistance?

Home state reluctance to regulate international corporate activities in the human rights context is sometimes characterized as an imperialistic infringement of host state sovereignty. This concern may be explicit, or it may be implicit in an expressed desire to avoid conflict with the sovereignty of foreign states. Yet, in the absence of a multilateral treaty directly addressing business and human rights, a regulatory role for home states in preventing and remedying human rights harms is increasingly being suggested. This paper seeks to explore theoretical perspectives that support unilateral home state regulation. Having established that unilateral home state regulation could serve as a catalyst for international norm creation, the paper will explore whether--despite its potential benefits--such regulation is inevitably imperialistic. In order to answer this question, this paper will draw upon the work of Third World Approaches to International Law (TWAIL) scholars to critique the customary international law process

A relational analysis of enterprise obligations and carbon majors for climate justice

A coherent theory of climate justice must answer the question of “who owes what to whom, and why?” In this paper I consider this question with a focus on the contribution of business enterprises, in particular the ‘carbon majors’, to climate injustice. I will first introduce a relational approach to legal analysis, drawing upon the work of feminist and vulnerability theorists, Indigenous feminist theorists, and feminist corporate and international law theorists. This relational approach confronts the dominant yet unacknowledged prevalence of the bounded autonomous individual of liberal thought in diverse areas of law and policy, and offers a method not only for critique, but also for reinterpretation and transformation of law in the Anthropocene. I then examine the 2018 Principles on Climate Obligations of Enterprises, drafted by a sub-group of the legal experts responsible for drafting the 2015 Oslo Principles on Global Obligations to Reduce Climate Change. Here, I consider how the Enterprises Principles both reflect and depart from a relational approach to legal analysis, and the implications of this for conceptualizing the human rights responsibilities of carbon majors for climate justice. In conclusion, I argue that a coherent theory of ‘who owes what to whom and why’ in the Anthropocene is dependent upon relational insights which enable us to tell old stories in new ways, and so reveal the interconnectedness and interdependence of all beings, while accounting for power and difference

Lessons for the Treaty Process from the International Law Commission and International Environmental Law

The chapter examines Amnesty case studies in order to document the state practice identified and the gaps that need to be filled. The chapter will then consider the work of the ILC in its progressive codification of the law on prevention and loss allocation with respect to transboundary harm arising from hazardous activities, culminating in draft Articles8 and draft Principles,9 respectively, in 2001 and 2006. The modest claim of this chapter is that as the key United Nations body responsible for the progressive development and codification of international law, the work of the ILC should surely be of relevance to the treaty debate. Bringing together the Amnesty case studies with the work of the ILC, the chapter will consider whether in fact there are lessons for the treaty debate to be learned from this body of work

Call for Inputs: Climate Change and Human Rights: A Safe Climate

There is now global agreement that human rights norms apply to the full spectrum of environmental issues, including climate change. The previous Special Rapporteur on human rights and the environment, Mr. John Knox, developed Framework Principles on Human Rights and the Environment that set forth three sets of duties that engage both States and businesses: procedural obligations; substantive obligations; and obligations relating to those in vulnerable situations. The current Special Rapporteur on human rights and the environment, Mr. David Boyd, is working to provide additional clarity regarding the substantive obligations relating to a range of elements that are essential to the enjoyment of a safe, clean, healthy and sustainable environment. His first report to the Human Rights Council addressed air pollution and associated obligations. He is now preparing a thematic report focusing on human rights obligations related to global climate change. For that purpose, he is seeking inputs on the topic from States and stakeholders through responses to the brief questionnaire below. Your replies will inform the Special Rapporteur’s analysis and contribute to his report, which will be presented to the General Assembly in October 2019. Questionnaire submission by: Sara L Seck, Associate Professor, Marine & Environmental Law Institute, Schulich School of Law, Dalhousie University, Nova Scotia Canada [email protected] And Lisa Benjamin, post-doctoral fellow, Marine & Environmental Law Institute, Schulich School of Law, Dalhousie University, Nova Scotia Canada [email protected]

Introducing the Gender Dimension of Plastic Pollution in the Arctic

This short communication seeks to introduce a new perspective – a gender dimension – into ongoing conversations on the governance of plastic pollution in the Arctic. Specifically, it seeks to understand (1) the degree to which gender and plastic pollution intersect in Arctic research and policy-making to date; and (2) the degree to which negotiations of the UN Treaty on Plastic Pollution integrate diverse gender perspectives from the North. We first consider the extent of the plastics problem in the Arctic and the degree to which existing research addresses its gender-dimension. Then, we introduce existing regional and global responses to the plastics problem, including ongoing negotiations for a United Nations treaty on plastic pollution. Finally, we examine the degree to which gender has been mainstreamed into these governance mechanisms