Our key takeaway: UN Special Rapporteur on Human Rights and the Environment, David R. Boyd, and international human rights lawyer Stephanie Keene, find that the right to a clean, healthy and sustainable environment (recognised by the UN Human Rights Council in 2021) “embodies substantive rights” that underpin the basic needs of all people, including “rights to clean air; a safe climate; access to safe water and adequate sanitation; healthy and sustainably produced food; non-toxic environments to live, work, study and play; and healthy biodiversity and ecosystems.” However, “[o]verlapping human rights and environmental abuses by business actors are rampant, while effective remedies for rightsholders remain elusive.” For example, approximately 9 million people die prematurely every year due to exposure to pollution and toxic substances, many of which are produced by private industry. Exacerbating this is the vulnerability factor, as many of the polluting facilities are located near marginalised communities with many barriers to achieving remedy. Addressing these injustices is fundamentally a matter of ensuring that environmental considerations are intertwined with human rights when creating mandatory due diligence legislation.
Under the aegis of UN Human Rights Special Procedures, the UN Special Rapporteur on Human Rights and the Environment, David R. Boyd, together with international human rights lawyer Stephanie Keene, published Policy Brief No. 3: Essential Elements of Effective and Equitable Human Rights and Environmental Due Diligence Legislation (June 2022):
- Human rights and environmental abuses are rampant, and effective remedies are elusive: The authors believe that the current suite of voluntary due diligence measures and existing human rights and environmental due diligence (HREDD) laws are a positive development for corporate accountability overall, but are “inadequate to mandate respect for the human right to a clean, healthy and sustainable environment, which continues to be abused by business activities that also commonly violate international environmental law.” Specifically, “[e]xisting human rights and environmental due diligence laws are fraught with inconsistencies, ambiguities, exemptions and other weaknesses that prevent them from adequately responding to the often-overlapping human rights and environmental abuses that are plaguing rightsholders and ecosystems worldwide.”
- “Four overarching goals that should inform the development of HREDD laws”: The policy brief sets out four “core qualities of comprehensiveness, balance and harmonization” that should underpin HREDD legislation. First, HREDD laws should clearly include the right to a clean, healthy and sustainable environment among the internationally recognised human rights that companies are required to base their due diligence on. Second, these laws should link with existing environmental treaties and legislation so as to “be sufficiently harmonized to create a coherent transnational enforcement environment rooted in international human rights, international environmental law and related standards.” This could include the United Nations Framework Convention on Climate Change (UNFCCC), Paris Agreement, Convention on Biological Diversity, Convention to Combat Desertification, and Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES). Third, HREDD laws should “[i]mpose due diligence obligations aimed at protecting states’ good governance practices, in addition to protecting human rights and the planet,” recognising that both human rights and environmental protection are undermined in countries with weak rule of law, corruption and dysfunctional democratic institutions, Fourth, laws “must be sufficiently prescriptive to generate a regulatory climate of legal certainty and predictability. At the same time, legislators should avoid overly prescriptive measures that may limit regulated entities’ abilities to take a wide range of context-specific actions to effectively prevent human rights and environmental harms” (i.e., focusing on compliance rather than actual performance).
- “Ten key elements to be included in all [HREDD] laws”: The authors outline ten elements they believe should be included in all HREDD laws, at global, regional and national level: (1) Mandate due diligence “duties of care” around the right to a clean, healthy and sustainable environment, covering the entire lifecycle of a project or enterprise. (2) Duties of care should “reflect all stages and core components of the human rights and environmental due diligence process, thus requiring regulated entities to address actual and potential adverse impacts to human rights, the environment (inclusive of the climate and biodiversity) and good governance.” (3) The legislative scope of HREDD laws must be proportionate to the size, scope and activities of a business, span full value chains, be focused on high-risk sectors, provide support for SMEs and specify duties of care for directors. (4) Laws should both require and incentivize a dynamic response to “fluctuating human rights, environmental and good governance risks.” (5) Laws should be “rightsholder-centered” and responsive to gender and other types of vulnerability, as well as being grounded in consultation and engagement at each stage of the due diligence process. (6) “Empower rightsholders’ access to justice and effective judicial and non-judicial remedies.” (7) Ensure that rightsholders, human rights and environmental defenders, whistleblowers, witnesses and their families are protected from retaliation and violence. (8) States should enforce HREDD laws through monitoring compliance. (9) Harmonisation of HREDD laws with bilateral and multilateral agreements and other relevant legislation is crucial to enable companies to adhere to the laws, and (10) International cooperation to enforce HREDD laws should be mandated.