Our key takeaway: The specificities of climate change need to be taken into account in order to most effectively apply human rights due diligence to climate change. A human rights due diligence ‘plus’ may be needed.
Professor and Vice-chair of the UN Working Group on Business and Human Rights Surya Deva has published remarks made related to climate change and human rights due diligence on the Corporate Due Diligence and the Green Deal webinar organised by the Nova Centre on Business, Human Rights and the Environment:
- There are a number of distinctions between climate due diligence and human rights due diligence. Rather than impacting individual rights, “climate change … is a global collective issue impacting the whole society.” It’s a challenge to identify impacted stakeholders, because “the question is who is not impacted.” Further, impacts extend into future generations, which makes stakeholder consultation a particular challenge:“[h]ow are companies going to consult the generation of the people who are not even born yet?” Adverse impacts identification is more challenging for climate change, where “in many cases it could be uncertain to know the exact impact without scientific evidence.” Finally, when it comes to modes of involvement, the mode of direct linkage from human rights due diligence may not apply readily to climate. For, “how do we know that what is the contribution of this one particular business to climate change globally and how much it has to be accountable for that.”
- Remedies are critical – and different kinds of remedies will be needed. Remedies go to the core of human rights, and “[i]f you do not have effective remedies, we can’t really say that these are rights.” Preventive remedy that prevents high-emitting projects from proceeding in the first place, will be particularly critical. In addition, reflection on how people can seek remedies is important. “Let us take the example of a French company that has caused climate change impacts in Fiji, in Mauritius and in the Maldives. How are these victims going to access the forum? How many cases are going to be filed against this one company?” Collective remediation may be the answer, and Deva suggests a possible global fund “that could take care of the adverse impact on climate anywhere globally.”
- Mandatory due diligence laws may be insufficient. Deva notes that “[w]e need incentives for businesses, both to respect human rights and also to ensure that they do not damage the climate.” Further, “there should be certain red lines, where the due diligence is not going to be enough”, such as a prohibition of deep-sea mining. Finally, due diligence is not going to tackle the “fundamental structural changes to the current economic order” that are needed, such as tackling “unnecessary consumption in the market.”
For more, see Surya Deva, Climate change: Looking beyond human rights due diligence? (Nova Centre on Business, Human Rights and the Environment Blog, 7th May 2021)