Friday, February 05, 2021

Thoughts on "Human Rights, Climate Change and Business: Key Messages" Office of the UN High Commissioner for Human Rights



Even as the conventional international elites seek to finally finish the battles over the allocation of rights, duties, and obligations between business, states, international organizations, and civil society with reference to human centered human rights regimes as they developed between 1947 and 2011 (eg here), it appears that the core foundational premises may be moving beyond the limiting constraints of the perspectives that have produced those battles. 

Supported by  the German Federal Ministry for Economic Cooperation and Development, the Office of the High Commissioner for Human Rights has released its Human Rights, Climate Change, and Business: Key Messages. The "document explores the main legal and policy implications of the UNGPs for States and business- es with regard to human rights and climate change (Section I) and concludes with some of OHCHR’s key advocacy messages on this issue (Section II)" (Ibid., p. 1). 

The document is divided into four parts.  The first three parts intertwine human rights issues within a climate change framework (or, human rights advocates might suggest it intertwines climate change within human rights frameworks--the difference in centering is important).   

With respect to the Pillar 1 State Duty to Protect Human Rights, the document emphasizes the embedding of climate change sensibilities . The difficulty here is the extent to which it appears to be an "add on" to the fundamental framing of human rights, rather than as the key violation of human rights. Adding the words "including with respect to climate change" suggests  the possibility of de-centering climate change in ways that may not reflect the critical importance of indicia and mechanics of climate degrading activities that may themselves be the engines of human rights violations. Climate change does not have an adverse impact on human rights (which is the primary space to which the state duty is directed; instead climate change is the adverse impact on human rights that then manifests in consequential ways. 

With respect to Pillar 2 Corporate Responsibility to Respect Human Rights, the document suffers the same centering problem as the state duty, noted above. But much appreciated is the extension of the emphasis of corporate responsibility beyond legal compliance and which looks toward global standards that exist 2even in the absence of clear [or unclear] domestic climate obligations" (Ibid., p. 4).   More effective than any pieties directed toward states (which tend to do as they must or can) is the embedding of climate change related human rights impacts in their human rights due diligence practices.  That, probably more than anything  else, will move toward naturalizing climate change related activities within the constellation, and perhaps as the animating factor, of human rights as a key element in valuing and assessing economic activity.   

With respect to Pillar 3 Access to Remedy the linking of climate change  to the remedial pillar is welcome.  Here the great and most interesting innovation is the push toward positive (remediation) as opposed to negative (prevention) obligations ("Business enterprises should participate in good faith, and not undermine, proceedings before legal or non-legal tribunals that promote accountability for climate harms. In the context of climate change, particularly where businesses have contributed to severe impacts (such as large businesses involved in the generation of electricity and heat, transportation, industrial agriculture, and other high emitting sectors), each business should provide for remediation appropriate to its share in responsibility for the harm" Ibid., 5).

Lastly, the discussion around "Advocating a Rights Based Approach to Business Activities Related to Climate Change" adds a welcome additional set of positive responsibilities. Appreciated is the scope of the responsibility, the contours of which are broad enough to include a large variety of viewpoints.  The avoidance of an orthodoxy in the area is particularly important as knowledge and culture advances. To that end the focus is on prevention, on access to information, on lobbying, and on meaningful public participation.  More problematic because of the great failures of state duty are commitments to the protection of human rights and climate change defenders, policy coherence, and justice and equity issues. Each remains open ended enough that in effect they continue to augment incentives to privatize each. The result is the continuation of vesting increasing responsibility on private actors through the second pillar to subsidize the growing deficiencies in state compliance with their duties. Ensuring the right of all persons to the benefits of science remains contentious. This implies two quite different points--the first is distributing scientific knowledge around which there is at last momentary consensus.  The second is the direction of resources, including pure research. All, however, remain works in progress that are informed, in turn, by changing cultural tastes and ways of looking at the world.

The document follows below and may be downloaded HERE.


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