Whilst there are existing due diligence frameworks from organisations such as the United Nations Guiding Principles on Business and Human Rights (UNGP), the Ethical Trade Initiative (ETI) and the Organisation for Economic Cooperation and Development (OECD), these are all largely voluntary frameworks with ineffective incentives or sanctions to encourage companies to comply with. Therefore, the notion of mandatory due diligence is seen by investors and companies as a welcome and necessary step towards holding large corporations accountable for their negative impacts on people and the environment.
This 3 part series will explore the link between businesses, human rights and the environment, the COVID implications, the need for businesses to care about mitigating their impacts, and some of the developments towards a mandatory due diligence framework.
The Link between Businesses, Human Rights and the Environment
According to UNEP, human rights and the environment are intertwined; human rights cannot be enjoyed without a safe, clean and healthy environment; and sustainable environmental governance cannot exist without the establishment of and respect for human rights. Loss of biodiversity, climate change, pollution and the extinction of species are all environmental impacts that could affect the enjoyment of human rights, including the rights to life, self-determination, development, food, health, water and sanitation and housing.
Large corporations have greatly contributed to climate change. However, corporate environmental crime often goes under the radar as many of these actions are only morally wrong and do not necessarily constitute crimes. Yet, their contribution to climate change is evident in the particularly high greenhouse gases emitted by companies in the energy sector, the deforestation in global chains, and the pollution of the environment resulting in the loss of livelihoods and the health for local communities as a result of the activities of the subsidiaries of multinational companies. For example, there have been several cases concerning the environmental impacts of large oil companies like Shell, in countries in the Global South. For example, there is an ongoing case against Total, an oil and gas company headquartered in France, is the main operator of a project in a protected natural park in Uganda. Total plans on drilling over 400 wells to extract 200,000 barrels of oil a day. Thousands have been displaced by the start of the project and have not been compensated. The communities in Tanzania noted that this will negatively impact them and their environment, and brought a claim against Total under the French duty of vigilance law.
The need for businesses to show a greater duty of care concerning human rights and the environment is not only due to the environmental crimes carried out by corporations which then impacts the enjoyment of human rights. Instead, it also refers to the concurrence between human rights violations in complex supply chains such as modern slavery and forced labour and climate change. This is evident in many sectors including fishery and agriculture. For example, there is a correlation between large number of unregulated migrant workers in Thailand, modern slavery and unregulated fishing which is threatening the security of marine ecosystems. The link between modern slavery and adverse environmental impacts is also evident in the link between deforestation and modern slavery in Ghana. In the west of Ghana, mining is the dominant cause of forest loss, which is often performed illegally, and associated with slavery—including forced and child labour and human trafficking. This shows that corporations need to show better due diligence along their supply chains not only concerning their environmental impacts which could go on to affect human rights but also concerning the labour practices in their supply chains.
The lockdown measures introduced to combat the COVID-19 pandemic outbreak have generated significant challenges for businesses. As firms begin to re-stabilise, try and ensure business continuity and make adjustments to their supply chains, there is an increased risk of adverse human rights and environmental impacts materialising throughout the value chain. Attention must be paid to this, as many businesses may opt for easy routes instead of prioritising human rights and the environment. The emergence of these risks prompted international bodies to publish guidance on effective due diligence for corporations. On 10 April 2020, the UN Development Programme published a COVID-19 Rapid Self-Assessment tool which allows businesses to survey the human rights impacts of their operations. Similarly, on 16 April 2020, the OECD’s Centre for Responsible Business Conduct published a COVID-19 policy paper, which advocates the use of due diligence to mitigate the adverse impacts of post-pandemic recovery efforts. The increase in available guidance on due diligence sets the tone on what is to come.
There is clearly an increase in pressure for international bodies to produce mandatory due diligence frameworks, and more pressure on corporations to be satisfactorily compliant. Therefore, it is important that corporations stay ahead and vigilant in their environmental due diligence processes.
Lees, S.C. (2019) ‘The link between human rights and the environment’. Available at: https://www.undp.org/content/undp/en/home/blog/2019/the-link-between-human-rights-and-the-environment.html
Umweltbundesamt (2020) ‘Environmental & climate protection for crisis-proof value chains’. Available at :https://www.umweltbundesamt.de/en/topics/environmental-climate-protection-for-crisis-proof
University of Nottingham’s Rights Lab, Royal Holloway University of London, and the Independent Anti-Slavery Commissioner (2018) ‘Modern Slavery, Environmental Destruction and Climate Change: Fisheries, Field, Forests and Factories’ Available at: http://www.antislaverycommissioner.co.uk/media/1241/fisheries-field-forests-factories.pdf
CORE VALUES, ‘Why the UK needs a Commission for Business, Human Rights and the Environment’. Available at: https://corporate-responsibility.org/wp-content/uploads/2013/11/COREvalues.pdf
UNEP, ‘What are environmental rights’. Available at: https://www.unenvironment.org/explore-topics/environmental-rights-and-governance/what-we-do/advancing-environmental-rights/what
Jackson, B (2019) ‘Understanding the co-occurrence of tree loss and modern slavery to improve efficacy of conservation actions and policies’. Available at: https://conbio.onlinelibrary.wiley.com/doi/pdf/10.1111/csp2.183
The Guardian (2020) ‘French NGOs and local authorities take court action against Total’ Available at: https://www.theguardian.com/world/2020/jan/27/french-ngos-and-local-authorities-take-court-action-against-total
Jennett,JH., Hamzi, L. and Mashru, R. (2020) ‘Corporate Human Rights Due Diligence in times of COVID-19’. Available at: https://www.ejiltalk.org/corporate-human-rights-due-diligence-in-times-of-covid-19/
OHCHR, (2020) ‘Business and Human Rights: A Progress Report’ Available at: https://www.ohchr.org/Documents/Publications/BusinessHRen.pdf
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Umweltbundesamt (2020) ‘Environmental & climate protection for crisis-proof value chains’. Available at: https://www.umweltbundesamt.de/en/topics/environmental-climate-protection-for-crisis-proof
Dr Aristova, E. (2020) ‘Towards Mandatory Human Rights Due Diligence’. Available at: https://www.business-humanrights.org/en/blog/exploring-trends-in-corporate-human-rights-due-diligence/https://www.business-humanrights.org/en/blog/exploring-trends-in-corporate-human-rights-due-diligence/
Business and Human Rights Resource centre (2020) ‘Towards mandatory human rights due diligence in the UK: Developments and opportunities’. Available at: https://www.business-humanrights.org/en/blog/towards-mandatory-human-rights-due-diligence-in-the-uk-developments-and-opportunities/