Tuesday, December 12, 2017

Sara Seck: "Reflections on Business, Human Rights, the Environment, and Climate Justice"

I am thrilled to re-post a recent post written by Sara Seck, "Reflections on Business, Human Rights, the Environment, and Climate Justice," which appeared first in the Dalhousie University Environmental Law News Blog of 4 December 2017. It is worth a very careful read for the issues it raises. In particular, the importance of bringing together conventional approaches to human rights and the consequences of environmental harm, including climate change, are well overdue. Sara Seck currently serves as Associate Professor at the Schulich School of Law and Marine & Environmental Law Institute, Dalhousie University. 

Reflections on Business, Human Rights, the Environment, and Climate Justice (December 4, 2017)

December 4, 2017 Sara Seck 

This is my first post as a new faculty member with Dalhousie University’s Schulich School of Law and Marine & Environmental Law Institute. My aim is to draw attention to the relationship between environmental and climate justice issues, and the business and human rights movement. I will first introduce the United Nations Forum on Business and Human Rights and the theme of access to effective remedy, then consider the relationship between human rights and environment. I will then briefly describe several sessions at the Forum which considered or could have considered human rights and environment issues, before offering some reflections on climate justice and gender.

I began writing this post from Geneva, where I was attending the 6th United Nations Forum on Business and Human Rights from November 27-29, 2017.[1] The Forum is an initiative of the Working Group on Business and Human Rights, and the Office of the High Commissioner of Human Rights, following on the endorsement by the UN Human Rights Council of Guiding Principles on Business and Human Rights in 2011. The Forum is designed to bring together multi-stakeholder participants from around the world, including government representatives, business, non-governmental organisations, Indigenous peoples, law firms, investor organisations, academia, and various United Nations bodies. There were approximately 2500 people in attendance this year, with multiple simultaneous sessions.

The central idea behind the UN Guiding Principles and thus the Forum, is that while all states have a duty to protect human rights, businesses also have an independent responsibility to respect human rights, which requires them to undertake human rights due diligence in order to identify, prevent, and remedy human rights harms throughout their operations. There is also a need for victims of human rights abuses to be able to access effective remedy, and indeed the theme of the Forum this year was “Realizing Access to Effective Remedy”, also the topic of a recent report by the Working Group on Business and Human Rights. Many sessions were led by lawyers who were actively engaged in exchanging lessons on how to effectively advise business clients on the conduct of human rights due diligence. Other sessions considered how lawyers can best assist clients seeking remedy and accountability from businesses. An important aspect of the effective remedy theme was the relationship between judicial and non-judicial grievance and remedy mechanisms, something I have considered in earlier writings.[2] The Office of the High Commissioner for Human Rights (OHCHR) has been studying access to judicial and non-judicial remedy (the Accountability and Remedy projects I and II) and led several of the sessions on non-judicial remedy.

There is often a tendency to think about environmental concerns quite separately from human rights, even though many of the most frequently cited global business and human rights case studies have an environmental dimension. These include cases where there has been a failure to clean up and compensate for pollution on contaminated lands (such as Shell in Nigeria, or Texaco/Chevron in Ecuador), or cases in which there are allegations of corporate complicity with government security forces who engage in violent suppression of environmentally-concerned local community protestors or land protectors (see my blog on the Kiobel decision here, as well as Global Witness’ research documenting the alarming increase in killings of environmental human rights defenders). Another related dimension is that of land rights, and especially the rights of local communities and Indigenous peoples, which, as usual, were subject to much discussion at the Forum (see for example here, here, and here).

Human rights and environmental issues were both explicitly and implicitly raised in many sessions at the UN Forum. For example, one session drew attention to the importance of the right to information and associated freedoms for environmental protection. The session featured Mr Baskut Tuncak, the Special Rapporteur on human rights and hazardous substances[3] who spoke at length about his 2015 report on the right to information on hazardous substances and wastes. The report clarifies the state duty to collect, assess, and update the information necessary to evaluate actual and potential impacts of hazardous substances on human rights to life and health, among others, and the duty of states to ensure that individuals and communities, especially those at disproportionate risk of harm, have access to information about hazardous substances in their environment, as well as in food and consumer products. In accordance with the business responsibility to respect rights, businesses should independently undertake human rights due diligence so as to identify actual and potential impacts, and communicate to governments and to the public about hazardous substances in products and in their supply chains. While the right to information may at first glance seem distant from concerns over access to remedy, it is clearly essential from a preventative perspective. Mr Tunack also highlighted the importance of traceability in global supply chains, and of ensuring court proceedings and settlements involving alleged impacts of hazardous substances do not impose confidentiality and thus limit access to important information.

Settlement agreements were also the subject of a session dedicated to examining the Mariana tailings dam disaster in Brazil, described as the “worst socio-environmental disaster in Brazilian history”, which killed 19 people, while dumping toxic residue into key river basins that contaminated vital water sources, rivers, and soil, impacting millions of people. One month after the spill, federal and state governments filed a lawsuit against the three companies involved, which led to a settlement agreement. However, civil society groups and public prosecutors raised concerns that the agreement was reached without meaningful consultation with impacted communities, while restricting State and corporate liability. Obstacles to access to justice were discussed at the Forum, including the challenges facing those seeking to recover from loss of livelihood. (See further UN concerns raised in November 2016). The settlement agreement was annulled by federal courts in Brazil, and a new protocol is being implemented that is designed to more meaningfully involve affected communities in the structure of governance of recovery programs. This case study should remind Canadian readers of the Mount Polley mine disaster, which was the subject of a recent Amnesty International report, and the statement of the UN Working Group on Business and Human Rights during their country visit to Canada in May 2017.

Non-judicial remedy received attention at the Forum as well as judicial remedy. For example, one session was on the effectiveness of state-based non-judicial mechanisms, part of the OHCHR’s Project II. The session considered state-based non-judicial mechanisms of particular relevance to transnational business conduct, such as the National Contact Point of the OECD Guidelines for Multinational Enterprises (which have both a human rights and an environmental chapter, as I have examined in a recent paper that also considered Indigenous rights).[4] However, also on the agenda at this UN Forum session was the role of national human rights mechanisms. Among those featured was the Commission on Human Rights of the Philippines, represented by Mr Roberto Cadiz, the Commissioner who is handling the carbon majors climate change Petition, about which he spoke. This was unfortunately one of the very few moments during the Forum in which climate change was discussed, a problem also evident at the 2016 Forum. I’ve recently written about this petition from a feminist/relational theory perspective,[5] a subject to which I will return at the end of this blog.

Having said this, climate action was lurking in the background during a session that examined the need for a human rights approach to child labour in cobalt supply chains. The session noted the importance of cobalt as an essential component of lithium-ion batteries used in electric vehicles and green energy solutions, as well as mobile phones and laptop computers. Over half of the world’s cobalt reserves are located in the Congo (DRC), and Amnesty International recently issued an updated report drawing attention to the troubling conditions in artisanal mining in DRC and the responsibilities of industry giants to ensure they are not profiting from exploitation in their supply chains. Institutional investors of multinational companies that use cobalt in their supply chains have formed a coalition and launched the Responsible Raw Materials Initiative, while the Chinese Chamber of Commerce for Metals, Minerals & Chemicals most recently created the Responsible Cobalt Initiative. Although the session was described as focusing upon child labour, in fact it considered livelihood issues for adults as well, including health concerns, and so implicitly, environmental issues and exposure to hazardous substances. Respect for human rights in supply chains might seem at odds with a Forum theme of effective remedy, but fits well given that attention to supply chains can uncover human rights harms that merit remedy, and hopefully in time prevent future harms.

Another session devoted to child rights in global supply chains was organized by UNICEF, with a focus on garment manufacturing in Vietnam and Bangladesh, among other case studies. While child labour was raised as a key issue, the link was also made to the impact on children of failing to properly pay and support parent workers, especially mothers, as well as the impact on children of environmental pollution in communities in close proximity to business operations. Toxic substances were identified as an issue in one example where, due to limited access to clean water, a worker might have to choose between washing off toxic pesticides to which she had been exposed during agricultural work, or using the clean water for cooking purposes. Identification of these issues in recent studies, combined with the exercise of leverage at various stages of the supply chain, were described as having the potential for positive change. In keeping with the polycentric governance approach of a business and human rights lens, while the role of host state governments in regulating industries was understood to be primary, supply chain assessments, monitoring, and audits are powerful tools that can help to overcome regulatory capacity challenges.

Another remedy tool identified in the UN Guiding Principles on Business and Human Rights is the operational level grievance mechanism. A session organized by the international mining and oil & gas industry associations (ICMM and IPIECA) was dedicated to consideration of the potential usefulness of these mechanisms in the extractive industries context. Featured in this discussion were representatives of Rio Tinto, and BP, as well as the Acting Director of the Responsible Business Practices Division of Global Affairs Canada. This session provided a useful overview of how these two multinationals are structuring and using operational level grievance mechanisms to identify and prevent harms, as well as of the different dispute resolution roles being served in the Canadian context by the CSR Counsellor for the Extractive Industries, and the OECD National Contact Point (NCP).[6] It was also disclosed that Global Affairs is seriously considering whether or not to implement the extractive industries ombudsperson proposal as an additional and more robust dispute resolution tool, and that Canada’s OECD NCP will be subject to the OECD peer review process in 2018.

Despite the usefulness of this session, I find it increasingly disturbing that any session devoted to human rights and extractive industries would fail to actively consider the contributions of the fossil fuel industry to the human rights harms arising from climate change, especially given that the Office of the High Commissioner for Human Rights has explicitly identified businesses as duty bearers who must be accountable for their climate impacts (see #8 of the OHCHR’s Key Messages on Human Rights and Climate Change). While it would be possible for a specific instance to be brought to the Canadian NCP raising concerns over climate change impacts, this has not yet happened, although for the first time an OECD NCP specific instance raising climate change concerns was accepted by the Netherlands NCP just weeks before the UN Forum (curiously, the complaint is against ING Bank in relation to its investments in fossil fuels). Many Canadian fossil fuel companies appear to be beginning to show signs that they have a role to play in climate mitigation independent of government regulation, given the listings in the Non-State Actor Zone for Climate Action under the climate regime, yet too often their sole commitment is to put a price on carbon, rather than making a real commitment to emissions reductions as evident in the commitments of other signatories. Interestingly, a very recent country report on Norway prepared by the Committee for the Convention on the Elimination of Discrimination Against Women (CEDAW)[7] raised concerns over Norway’s continued expansion of oil & gas extraction in the Arctic given that climate change has a disproportionate impact on women who are reliant upon natural resources while living in poverty and so less able to be resilient in the face of natural hazards that negatively impact their livelihoods. Given the urgency of climate change, Canada’s commitments under the Paris Agreement, and the human rights consequences of failing to act, it is unacceptable that business and human rights issues under the Canadian extractive industries CSR Strategy are treated as if they are entirely divorced from conversations about climate change. Moreover, as noted above, climate change issues were for the most part absent from the program of the UN Forum this year, as was the case last year. This is, in my opinion, both perplexing and unacceptable.

Gender, on the other hand, featured prominently in many sessions this year, and indeed on the Thursday following the UN Forum a special consultation was held to which I was invited to speak on the need to develop guidance on a gender lens to implementation of the UN Guiding Principles. My invitation to this consultation was a consequence of a recent conference and policy meeting that I co-convened with my colleague Penelope Simons at the University of Ottawa on the rights of women and girls in resource extraction.[8] One of the aims of our conference was to bring together voices of scholars and activists working on issues relating to resource extraction within Canada, with those working on issues outside of Canada, so that we could identify commonalities and differences, and ultimately come up with some recommendations for law and policy reform. We will be publishing various outcomes from this conference and policy meeting in the near future.

Not surprisingly, the gender lens consultation did not delve deeply into the human rights implications of climate change, although the topic did come up. More interestingly, while I was leaving an earlier session at the UN Forum that focused on land rights issues, I picked up a short document entitled Feminist Fossil Fuel Free Future, available here, a truly inspiring read prepared by the Asia Pacific Forum on Women, Law and Development (APWLD). Its eight point “Some initial ideas to start the conversation…” provide a comprehensive vision of an alternate path to a better world that merits attention. Perhaps next year the UN Forum will take up the challenge and provide multiple opportunities for serious conversations about the challenges of business, human rights, and climate justice.

By Associate Professor Sara L Seck, Schulich School of Law and Marine & Environmental Law Institute, Dalhousie University


[1] I am grateful to the International Law Research Program of the Centre for International Governance Innovation, where I am a senior fellow, travel funding support.

[2] Sara L Seck, “Transnational Judicial and Non-Judicial Remedies for Corporate Human Rights Harms: Challenges by and for Law” (2013) 31:1 Windsor Yearbook of Access to Justice 177-195, online: https://ojs.uwindsor.ca/ojs/leddy/index.php/WYAJ/article/view/4320/0 .

[3] See also the official UN website, online: http://www.ohchr.org/EN/Issues/Environment/ToxicWastes/Pages/SRToxicWastesIndex.aspx See also the website of the Special Rapporteur on Human Rights and the Environment, Mr John Knox, online: http://srenvironment.org

[4] On environmental and Indigenous rights in the OECD Guidelines as compared to the IFC Performance Standards, see: Sara L Seck, “Indigenous Rights, Environmental Rights, or Stakeholder Engagement? Comparing IFC and OECD Approaches to the Implementation of the Business Responsibility to Respect Human Rights” (2016) 12:1 McGill Journal of Sustainable Development Law 48-91.

[5] Sara L Seck, “Revisiting Transnational Corporations and Extractive Industries: Climate Justice, Feminism, and State Sovereignty” (2017) 26:2 Transnational Law & Contemporary Problems 383-413 (Symposium: International Environmental Law, Environmental Justice, and the Global South).

[6] See generally Sara L Seck, “Canadian Mining Internationally and the UN Guiding Principles for Business and Human Rights” (2011) 49 Canadian Yearbook of International Law 51-116.

[7] Committee on the Elimination of Discrimination against Women, “Concluding observations on the ninth periodic report of Norway” (17 November 2017) CEDAW/C/NOR/CO/9 , online: .

“14. The Committee commends the State Party for its International Cooperation Programmes, however, it is concerned that continuing and expanding extraction of oil and gas in the Arctic by the State party and its inevitable greenhouse gas emissions undermines its obligations to ensure women’s substantive equality with men, as climate change disproportionately impacts women, especially in situations of poverty, since they are more reliant on natural resources for their livelihoods than men and have lesser capacity to deal with natural hazards.
The Committee recommends that the State party review its climate change and energy policies, and specifically its policy on extraction of oil and gas, to ensure it takes into account the disproportionate negative impacts of climate change on women’s rights.”

[8] Among funders to whom we are grateful for support for this initiative are SSHRC, from whom we received a Connections Grant; the International Law Research Program of CIGI; and the Schulich School of Law, Dalhousie University.

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