Posted by Kate Jelly
Human rights due diligence: time for (climate) change?
Posted by Kate Jelly
Given the threat climate breakdown poses to the most fundamental human rights, it is surprising how little attention is paid to the interrelation of the two. It’s true some businesses have both robust human rights due diligence processes and policies aimed at mitigating the climate impact of their operations and supply chains, but these tend to be treated as separate issues. Sometimes, they are grouped together under the umbrella of broader social responsibility or sustainability, but it’s rare for companies to consider climate change itself as a cause of negative human rights impacts.
The human rights consequences of climate change are both direct and indirect. Climate change exacerbates existing vulnerabilities and tensions as well as causing new ones. Already, climate change is making water resources scarcer, denuding land, spurring loss of livelihoods, forcing people to migrate, and increasing the likelihood of conflict. In contexts of increased vulnerability and poverty, other human rights violations – forced labour, child labour, gendered/ethnic discrimination – become more likely, as a recent report supported by DFID on debt bondage in Cambodian brick kilns laid out with bleak precision.
One of the problems for businesses in taking an integrated approach is that the formal policy and guidance helping them to do so has been lacking. The UNGPs call for companies to avoid undertaking or contributing to activities that could harm people affected by their operations. We can infer that this includes activities that contribute to climate change, but climate change is not explicitly cited as a risk: the words ‘climate’ and ‘environment’ do not appear at all in the 42-page document setting out the UNGPs. The UN Global Compact, for its part, does focus on both human rights and the environment (alongside labour and anti-corruption) but treats these as separate rather than interrelated strands.
Time to step up action and thinking?
The international human rights community more generally has also failed to consider climate change explicitly as a human rights issue, as the UN Special Rapporteur on Extreme Poverty and Human Rights made clear in a recent report. The report draws attention to the risk of “a ‘climate apartheid’ scenario where the wealthy pay to escape overheating, hunger, and conflict while the rest of the world is left to suffer”.
The ILO has just also released a report with stark predictions for the impact of the climate crisis on labour: by 2030, even following the most conservative estimates, productivity losses equivalent to 80 million jobs/US$2,400 billion are likely.
As the impacts of climate change on human rights are starting to be emphasised, there is also emergent jurisprudence extending ‘rightsholder’ status to natural features. In an attempt to protect its rivers from pollution, encroachment and illegal dredging, Bangladesh has just granted them the legal status of living entities, with the same rights as people. This follows a 2017 New Zealand ruling which gave the same legal rights as human beings to the Whanganui river, which is considered an ancestor by the local Māori tribe. While this could be seen as an interesting way of integrating the twin strands of environmentalism and human rights, it also complicates matters because the two sets of rights can contradict each other. Immediately following the Bangladesh ruling, authorities started evicting communities from informal settlements along riverbanks in Dhaka, violating the rights of one group of rightsholders in order to protect those of another.
It seems timely, therefore, for the business and human rights community to start thinking differently about climate change and environmental impacts more broadly.
To stimulate a discussion and debate about what this might look like, the following are a few initial thoughts and questions on what might be considered in relation to climate change and human rights due diligence:
- Can we use a climate change lens to do better human rights due diligence, with an approach that focuses on addressing root causes rather than simply managing risks? If so, how can we better identify and capture the ways in which climate change causes or contributes to human rights impacts?
- The UNGPs envisage HRDD in terms of a direct linkage between a company’s activities and specific groups of rightsholders. In this context, how can we think about the human rights responsibilities of companies contributing to climate change when their impacts are felt extremely indirectly, and alongside other GHG emitters? Do we need to rethink the direct/indirect linkage component of HRDD when it comes to climate change and allocating levels of responsibility?
- With this in mind, might a new approach to due diligence – and the allocation of responsibility – require polluting companies to compensate workers – either financially or through retraining – for job losses due to climate change and the transition to a zero-carbon economy? Would it be feasible for this to extend to communities as well as workers?
- How can existing human rights due diligence frameworks be updated to include the impact of climate change? Perhaps we can look to the new guidance from the UN Working Group on Business and Human Rights on gender dimensions of the UNGPs for inspiration. Who is going to develop guidance on climate change and HRDD?
- What about the conflict between different groups of rights, particularly when they intersect with the issue of national sovereignty? For example, the discovery of fossil fuel reserves in a poor community might present a once-in-a-lifetime financial opportunity to fulfil rights to health, education and livelihood, but at the cost of contributing to climate change. Paying communities to “keep it in the ground” seems the obvious answer but calculating and implementing such a solution is far from straightforward.
- Do the Bangladesh and New Zealand examples set a precedent for thinking more holistically about ‘human and rights of nature due diligence’, instead of just human? If so, how can we begin to reconcile competing sets of rights?
- And let’s not forget about the potential negative human rights impacts of climate-friendly industries, like renewables. There is a considerable risk of renewable energy projects such as hydroelectricity negatively impacting the rights of indigenous peoples. And many climate change mitigation and adaptation projects supported by climate funds involve large-scale land acquisition for energy production or for biofuels. This presents significant direct risks to rights to food, health and housing. Furthermore, a UNDP report argues that the climate finance regime has tended to reflect the larger global financial architecture: “a predominance of gender blind decision-making that has led to gender-based segmentation and asymmetries that disadvantage women”.
The above is intended as a starting point, not an exhaustive list of issues, and a call to action for the business and human rights community. Responses are welcome.