Climate change and the UNGPs (UNWG)

Our key takeaway: Although the UNGPs do not explicitly mention climate change, we know that climate change is a significant factor in increasing the severity and likelihood of adverse human rights impacts companies can be connected to. Further, the international instruments that the UNGPs themselves rely on are evolving, to capture the legal, scientific and political developments in this field. Enter a note from the UN Working Group on business and human rights that seeks to clarify what companies should be doing when it comes to human rights and climate change. The note calls on companies to take responsibility for climate change-related impacts and act responsibly, as well as to provide effective access to remedy in regard to human rights and environmental impacts related to climate change.

The UN Working Group on the issue of human rights and transnational corporations and other business enterprises (UNWG) published the ‘Information Note on Climate Change and the Guiding Principles on Business and Human Rights’ (June 2023). “This Note aims to clarify what actions should be taken by States and businesses in relation to embedding human rights considerations into climate change policies, processes and actions”:

• Climate Change and the Guiding Principles: The UNWG describes the relationship between the climate change and the UN Guiding Principles. The UNGPs “do not explicitly mention climate change. However, two of the main international human rights law instruments to which the Guiding Principles specifically refer (in Guiding Principle 12), being the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights, have been interpreted since 2011 in a manner consistent with international environmental and climate law.” The UNWG also recalls that “[t]he International Labour Organization’s Declaration on Fundamental Principles and Rights at Work … now includes a ‘safe and healthy working environment’. These developments are consistent with the Commentary to Guiding Principle 12 that ‘business enterprises may need to consider additional standards [of human rights]’ beyond those specifically given in the Guiding Principles.” The UNWG concludes that “a decade after the adoption of the Guiding Principles, and especially in light of … legal, scientific and political developments …, it is clear that States and business enterprises have obligations and responsibilities with respect to climate change, and with respect to the impacts of climate change on human rights.”
  

• Take responsibility for climate change-related impacts and act responsibly: The UNWG provides that “[t[he responsibilities of business enterprises under the Guiding Principles to respect human rights … include the responsibility to act in regard to actual and potential impacts related to climate change.” The note provides a number of measures that companies can take to fulfil these responsibilities. For instance, companies are asked to “[i]ntegrate climate change considerations in all aspects of the human rights due diligence process throughout their operations.” They are asked to “[c]onduct effective and meaningful consultation with all relevant stakeholders, including ensuring free, prior and informed consent by Indigenous Peoples, on their actual and potential climate change-related impacts on human rights and the environment.” The note also delves into how companies can “act responsibly” which includes “not promot[ing] unsustainable consumption, undertak[ing] greenwashing or seek[ing] to have undue corporate influence in the political and regulatory sphere in this area.” Specifically, the UNWG notes that companies should “[p]hase out both the use of fossil fuels and the production of greenhouse gas emissions, avoid contributing to deforestation, and not use carbon offsets”; and they should “[a]dopt procurement policies and practices which consider climate change-related impacts on human rights and the environment.” When it comes to just transition, the note calls on companies to “take collective action to mitigate climate change-related impacts on human rights and the environment and act to contribute to achieving a just transition to a zero-carbon economy without offsetting.”
  

• Climate change and access to remedy: the UNWG notes that companies have the “responsibility to act to provide effective access to remedy in regard to human rights and environmental impacts related to climate change.” For instance, alongside States, they are asked to “[d]evelop appropriate and effective remediation for human rights impacts of climate change, including for past climate change impacts and for the protection of the rights of future generations.” When it comes to operational grievance mechanisms, they “should … have the powers to deal appropriately with claims based on human rights impacts of climate change, remove all obstacles for bringing such claims, and provide effective remedies to victims.” Specifically, the UNWG calls on industry and business associations to “consider establishing sector-specific or industry- wide operational grievance mechanisms to deal with complaints about climate change-related impacts on human rights and the environment.”