COMMENT: Désirée Abrahams of Global Action Plan argues that a new approach to due diligence is needed that spans both action to address climate change and unintended human rights consequences
Ten years ago, the UN Guiding Principles on Business and Human Rights (UNGPs) were unanimously endorsed by the UN Human Rights Council. For the first time in history, clear and distinct roles for governments and businesses were set and accepted.
States have a duty to protect human rights. Companies have a responsibility to respect human rights – and in carrying out this responsibility, businesses are expected to carry out human rights due diligence.
Momentum to embed human rights into business decision-making is finally starting to build
From the outset, human rights due diligence held huge potential as a game changing mechanism. However, while it took a while to get going, its incorporation within soft and hard law has gathered pace over recent years.
Consider its inclusion within an array of sectoral-specific and wider sustainability standards (e.g. ICMM’s Mining Principles and ISO 26000), not to mention, intergovernmental standards on business conduct, such as the OECD Guidelines on Multinational Enterprises.
Human rights due diligence has also been integrated within financial lending requirements, e.g. the IFC Performance Standards, and as of 2020, is an explicit consideration for investors under the UN Principles for Responsible Investment, giving meat to the ‘S’ in ESG.
Stronger reverberations have also been felt through its adoption into hard law: the modern slavery acts of the UK (2015) and Australia (2018), France’s Corporate Duty of Vigilance Law (2017), the Netherland’s Child Labour Due Diligence Law (2019) and, most recently, Germany’s Act on Corporate Due Diligence in Supply Chains Law (2021).
And while these examples speak to a hardening of the law at national level, the UNGPs have stolen a march at the supranational level, too, through its inclusion into different regulations. Since 2019, the European Union requires sustainability-related disclosures in the financial services sector, and has instituted a taxonomy for sustainable activities’ on minimum social safeguards, both of which anchor human rights due diligence. And yet, the pièce de resistance has yet to come. According to the European Commissioner of Justice, Didier Reynders, the European Parliament will introduce mandatory human rights due diligence in 2021.
Ten years on, it can be said that momentum to embed human rights into business decision-making is finally starting to build. Yet as we reflect on the state of the planet and scan the horizon, it becomes clear that businesses urgently need to broaden their approach to tackling the triple planetary emergency articulated by the UN Secretary-General, António Guterres (climate change, biodiversity and pollution) and their intersection with human rights.
Currently, companies treat environmental harms and human rights as two distinct areas
Take the upsurge in climate change litigation and how concern has shifted from being solely environmental to one about human impact. At the heart of many legal claims is the contention that climate change will have grave implications for human rights. Claimants from the global north and south have launched lawsuits against their governments, highlighting the negative effect of climate change on their livelihoods, health and, ultimately, their fundamental right to life, both now and in the future. Critically, the intergenerational argument has been employed by child claimants from Portugal, India, Australia, and the U.S. to name a few countries.
Now consider the surge in net-zero claims. Since the beginning of 2021, many corporates have issued audacious net-zero commitments, relishing the opportunity to highlight their intention to transition their corporate fleets to electric vehicles.
However, while these are laudable claims, let’s look beneath the (EV) bonnet. Have the same companies been making commitments ensuring that the production of their new EV fleet is not tainted with human rights abuses? Some may have, given the EU regulation on supply chain due diligence, however supply-chain related issues should not be the only concern to corporates procuring electric vehicles. What about the health effects of the pollution arising from the chemicals and processes used in mining of metals such as cobalt, needed to produce lithium-ion batteries? Should this not be of concern also?
Currently, companies treat environmental harms and human rights as two distinct areas, yet the unintended human rights consequences from the mining of metals needed in the production of EV cars demonstrates a new approach is needed. One that is more holistic iand that openly looks for any unintended human rights risks when green decisions are being made.
Cue Resolution 45/30 – realising a child’s right to a healthy environment, which should help companies in this regard. Passed in October 2020 by the UN Human Rights Council, Resolution 45/30 is important for three main reasons:
It mirrors and anchors the UNGPs, restating that states have a duty to protect human rights and companies have a responsibility to respect them
Children are the rightsholder requiring protection. Therefore, having one affected stakeholder already identified should make it straightforward for companies to discharge their responsibility
It bridges the environment and humans, by expecting companies to consider the human rights impacts arising from environmental harm caused by their business operations and activities, an important distinguishing feature from other international norms that exist regulating pollution, toxins and the environment more broadly.
While many international norms have been passed and more will doubtless follow, Resolution 45/30, as a framework, has all the right ingredients to be a game-changer if comprehensively adopted. That is why it is deserving of proactive adoption, by states and companies alike.
Désirée Abrahams is senior business engagement manager for UK charity Global Action Plan, following over 19 years working on responsible business practice.Organisations she has worked for include International Business Leaders Forum, Mining and Faith Reflections Initiative, Chartered Trading Standards Institute, and several United Nations' organisations, including UNDESA, UNRISD, UNICEF, ILO and the UN Global Compact Network UK.UN Guiding Principles on Business and Human Rights UN PRI EU taxonomy OECD ESG modern slavery triple planetary emergency Transition minerals electric vehicles resolution 45/30