Saturday, June 03, 2017

Sara Seck on "The Canadian Country Visit of the United Nations Working Group on Business and Human Rights, and US President Trump’s Withdrawal from the Paris Agreement"

Sara Seck is on the faculty at Dalhousie University's Schulich Law School starting July 1, 2017. Before then she served as Associate Professor at the University of Western Ontario. Professor Seck's research interests include corporate social responsibility, international environmental, human rights, and sustainable development law, climate change, and indigenous law. She is particularly interested in international and transnational legal theory, notably the relationship between Third World Approaches to International Law (TWAIL) and international legal process theories that are informed by constructivist understandings of international relations. Professor Seck has contributed several important essays to this blog site (see here, here, here, and here).
Professor Seck participated in the recently concluded visit of the U.N. Working Group on the issue of human rights and transnational corporations and other business enterprises (
Statement at the end of visit to Canada by the United Nations Working Group on Business and Human Rights - See more at:
Statement at the end of the visit to Canada of the Working Group here).  The visit also coincided with the announcement by the U.S. President of the intention to withdraw the United States from the Paris Agreement (2015) that builds on the Framework Convention on Climate Change (information here).   Both events are deeply intertwined.  
Professor Seck kindly agreed to share her thoughts on both. Her essay, The Canadian Country Visit of the United Nations Working Group on Business and Human Rights, and US President Trump’s Withdrawal from the Paris Agreement: Trains passing in the night? Reflections on the events of June 1, 2017, provides important and valuable insight into the events and is well worth reading. It follows below. .


The Canadian Country Visit of the United Nations Working Group on Business and Human Rights, and US President Trump’s Withdrawal from the Paris Agreement: Trains passing in the night? Reflections on the events of June 1, 2017

June 2, 2017

By Sara L Seck, Associate Professor, Western Law (until June 30)/Schulich Law (as of July 1);

This post will consider two announcements made on June 1, 2017. First, the United Nations (UN) Working Group on Business and Human Rights released a Statement at the end of its country visit to Canada (May 23 – June 1, 2017). Second, President Trump made an announcement that the United States will withdraw from the Paris Agreement on climate change. Unrelated? Not surprisingly, the UN Working Group statement on its visit to Canada is silent on climate change. While the statement is clearly a reflection of the issues raised by Canadians during the visit, the absence of any reference to climate change and human rights is also evidence of the continuing deep silos that exist between the fields of international law on business and human rights, and international climate law.

As is well known, in 2011, the UN Human Rights Council unanimously endorsed Guiding Principles on Business and Human Rights (UNGPs, available here). A polycentric governance framework comprised of three interdependent pillars, the UNGPs provide that states have a duty to protect human rights from violations associated with business conduct; that businesses have a responsibility to respect human rights throughout their operations; and that access to remedy must be available for those whose rights have been violated. At the same time, the Human Rights Council established a Working Group on Business and Human Rights tasked with implementation of the UNGPs. From May 23 to June 1, 2017, the Working Group conducted a country visit to Canada (see, here), and in the spring of 2018 the Working Group will provide a full report of recommendations following the country visit to the Human Rights Council. In my capacity as a senior fellow with CIGI’s International Law Research Program, I recently published a research paper in anticipation of the Working Group’s visit to Canada (available here), with the aim of both introducing the UN Guiding Principles, and speculating as to the type of issues that might come up during the visit. My paper considers previous examples of country visits by members of the Working Group including a visit to the United States, as well as the contents of National Action Plans put forward by various states on implementation of the UNGPs (see further here).

The Working Group Statement, released on June 1, is in many ways not surprising. For example, the Statement singles out the extractive industry (mining and oil and gas) due its importance to the Canadian economy, and its global reach, including the fact that over 50% of public mining companies in the world are listed on the TSX and TSX-V stock exchanges. The Working Group highlights the potential for federal and provincial governments, industry associations and companies to do a better job of integrating respect for human rights and human rights due diligence into law, policy, and guidance. As has been the case in visits to other countries, including the United States, the Working Group considered human rights issues arising from domestic business conduct within Canada, and human rights issues arising from the international operations of Canadian-based or listed companies. As expected, the Working Group took note of key federal government initiatives relating to Canadian extractive companies operating outside of Canada (for a history of some of these initiatives, see my paper in 2011 Canadian Yearbook of International Law, here); while also noting the ongoing concerns raised by various international human rights treaty bodies, and studies that allege serious human rights abuses associated with Canadian mining companies operating internationally, including targeted deaths and threats to human rights defenders (see for example here). Accordingly, the Working Group made recommendations on the leadership potential of Global Affairs Canada and the Trade Commissioner; the need for greater government encouragement of human rights due diligence including in global supply chains and to prevent modern slavery; the need for Export Development Canada to improve its human rights practices through increased transiency; and the potential for trade missions and provincial trade and investment offices to use economic diplomacy tools as leverage for greater business respect for human rights. The Working Group also paid attention to the importance of access to effective remedies for human rights abuses both within Canada and abroad, endorsing both the need for a more effective, independent, and multi-stakeholder OECD National Contact Point mechanism, and a proposal for an independent extractive industry human rights ombudsperson (see more on this proposal here).

The previous paragraph provides only a short gloss over of the recommendations on Canadian extractive companies operating outside of Canada; this is an area that has received a great deal of attention in the past and continues to be a topic of much research and advocacy. More interestingly, perhaps, is the fact that the Working Group paid a considerable amount of attention to business and human rights problems within Canada, associated with extractive companies, but also more generally. For example, the Working Group considers labour rights concerns in relation to seasonal agricultural workers, foreign temporary workers, and persons with disabilities, as well as concerns that minimum wages in Canada do not provide a living wage. The rights of women are also identified, including concerns over harassment, pay disparity, and underrepresentation in senior decision-making roles as well as on corporate boards. Not surprisingly, but importantly, the Working Group highlights indigenous rights issues within Canada, noting the commitment of the current federal government to implementation of the UN Declaration on the Rights of Indigenous Peoples (UNDRIP) as well as the recommendations of the 2015 Truth and Reconciliation Commission (TRC) on the need for Canada to build a “new relationship with indigenous peoples based on equal respect, dignity and human rights” (for recent writings by Canadian indigenous law scholars on implementation of UNDRIP see here). The importance of business respect for indigenous rights is crucially a concern in relation to extractive industry operations within Canada, a topic to which the Working Group appropriately devotes much attention. The Working Group also notes a related development, the recent review of federal environmental assessment and the recently released expert report Building Common Ground, which highlights the need for indigenous peoples to be included as partners in collaborative decision-making processes. Brilliantly (and correctly), the Working Group notes in its assessment of corporate board diversity that there is a need for greater representation of indigenous women. And, the Working Group discusses the legacy of the 2014 Mount Polly Mine tailings dam breach and its impact on fisheries and sacred water sources of indigenous communities.

The Working Group statement concludes by recommending that Canada build on existing work to strengthen corporate human rights respect outside of Canada, but also undertake to develop a truly comprehensive national action plan on business and human rights together with provincial governments. It remains to be seen if a national action plan developed in Canada would embrace human rights concerns both within and outside of Canada, or if it will, as was the case in the United States, focus instead only on the outside of Canada issues, on the assumption that, despite evidence to the contrary, there are no business and human rights issues within Canada.

Many other issues are identified in the Working Group statement. Of particular interest is a reference to allegations that peaceful protestors and human rights defenders are subject to arrest and harassment (and more) by extractive companies, both within Canada and abroad. It is striking that this section focuses upon the extractive industry, in light of the arrest of peaceful protestors at the Muskrat Falls hydro-electric dam project in Labrador during the visit of the Working Group, resulting in the imprisonment of an Inuit grandmother who refused to commit to not returning to the site if released from jail (see here and here). For those who attended the UN Forum on Business and Human Rights in Geneva in November 2016, this incident might serve as a reminder of another indigenous woman protestor at a hydro-elective dam project, the Honduran environmental rights defender Berta Isabel Cáceres Flores who sadly paid with her life for her activism (see my reflection on the Forum, here).

Hydro-electric projects are arguably one of a number of green energy solutions that are essential if we are to address the climate change problem. As has been noted by many, it is equally important for green energy projects to respect human rights as it is for any other project. However, there is another business and human rights dimension to the climate change problem that is almost never acknowledged – that is, the independent responsibility of businesses with a large greenhouse gas footprint to aggressively transition to a lower if not carbon neutral business model (which some would argue could in theory be achieved through carbon offsets or sequestration), as well (arguably) as the responsibility of those with historic and current high emissions to provide remedy to those whose rights have been violated by climate change, especially the most vulnerable (see my draft paper on point for the International Law Association’s Study Group on Business and Human Rights, available here; see also the Philippines climate change petition). That climate change violates the enjoyment of human rights, particularly of the most vulnerable, is well established today, if one pays attention to the multiple reports on the topic from the Human Rights Council and beyond (see for example Mary Robinson Foundation – Climate Justice; John Knox’s 2016 UN Climate Change and Human Rights report here; OHCHR Key Messages on Human Rights and Climate Change, here). That businesses are duty-bearers in the climate change and human rights context is well accepted by these and other sources. Yet what exactly this means remains unclear, despite preliminary efforts by the International Bar Association in its Climate Justice Report (available here), and the Oslo Principles on Global Climate Change Obligations (available here); none seem to fully align with the business responsibility under the UNGPs, nor do they link human rights and climate change explicitly to indigenous rights.

This is an issue of immense importance in the Canadian context given the devastating impact of climate change on northern indigenous communities (see especially Nobel peace prize nominee Inuk Sheilah Watt Cloutier, The Right to Be Cold, here). Crucially, that climate change is understood today as a human rights issue is because of the activism of Sheilah Watt Cloutier, who played a leading role in the 2005 Inuit Climate Change Petition to the Inter-American Human Rights Commission (see petition). It is therefore deeply ironic that the Working Group statement on the Canadian country visit is silent on climate change, given that it was released on the same day that President Trump announced the withdrawal of the United States from the Paris climate agreement. (The Inuit Climate Change Petition placed responsibility for harm on US greenhouse gas emissions).

Notably, President Trump’s announcement was met with a flurry of activity on the part of business leaders and business organisations (see for example here, and here), denouncing his decision, while at the same time committing to business leadership on climate action. That businesses should take leadership on climate action, whether through supply chain responsibility for cumulative GHG emissions, or innovation in green energy solutions, could be seen as the embrace of social expectations by business actors: when states fail to meet their duty to protect, it is the independent responsibility of businesses to respect rights in the hope that we as a global community can reduce future climate harms. Whether in time businesses might chose to embrace the responsibility to remedy climate harms remains to be seen.

No comments: