What human rights due diligence for climate change impacts looks like

Anna Triponel

January 18, 2021

As laws on mandatory human rights and environmental due diligence are on the horizon, a critical question becomes how to apply due diligence-related regulation to business’ climate change impacts. This question is particularly important because of the way in which companies’ human rights due diligence and climate due diligence have developed in silos. A number of questions arise: what would this standard of care look like for climate change impacts? How does the concept of human rights due diligence apply to climate change impacts? How can companies meet this standard in real terms? To advance on these questions, legal think tank and policy organisation British Institute of International and Comparative Law (BIICL) has published expert contributions to a series of webinars Human Rights Due Diligence for Climate Change Impacts held between September and October 2020. Edited by Lise Smit, Senior Research Fellow in Business and Human Rights, and Ivano Alogna, Arthur Watts Research Fellow in Environmental and Climate Change Law, the document provides an overview of the many aspects and considerations around applying a human rights lens to climate change, and what this means for policymakers, companies, investors and communities.

The editors highlight in particular that “there seemed to be a consensus that, to a certain extent and at least in theory, companies are already subject to a duty to exercise care not to harm the planet, for example in tort law.” They further dive into the discussion regarding “whether due diligence is actually the correct standard to apply here, or whether, given the nature of climate harms and the state of the climate emergency, a strict liability model is required.” A recent poll conducted by BIICL shows for instance that participants opted for “a two-fold formula: a strict legal duty to meet certain targets, but if this duty is not met, the company would be allowed an opportunity to demonstrate why it has not met these targets, and how it is going about to prevent climate change harms. We found it interesting that this is reminiscent of aspects of both the ‘duty to prevent’ and the ‘comply or explain’ models, and the question is now how to turn this into an effective legal obligation.”

We’ve summed up below the contents of the report and the topics it covers so that you can easily jump to the area of interest to you in the report.

Episode 1: Corporate Due Diligence for Climate Change Impacts: The Status Quo (starting page 9)

  • Speakers in this webinar focused on current company due diligence practices related to climate change, in an effort to understand what causes “silos” to arise within companies when dealing with climate and human rights. They also “considered to what extent these could be utilised, integrated, adapted and expanded” in the face of upcoming mandatory human rights and environmental due diligence legislation.
  • Features speakers David R. Boyd (UN Special Rapporteur on Human Rights and the Environment); Shona Hawkes (Senior Global Policy Advisor – Forests at Global Witness); Clotilde Henriot (Senior Law and Policy Advisor, Trade and Environment Lead at ClientEarth); Stuart Bruce (Former Senior Associate in the International Arbitration Practice Group at Wilmer Hale); Caroline Sloan (Consultant at Sloan Consulting); and Jaap Spier (Reporter – Climate Principles for Enterprises; Senior Associate – University of Cambridge, Institute for Sustainability Leadership; and Honorary Professor of Global Challenges – University of Stellenbosch)
  • Caroline Sloan’s remarks (p. 21) are specifically targeted at companies in the oil and gas industry and provide reflections of how climate change impacts on human rights due diligence might be approached in the energy sector.

Episode 2: The (Intended) Impact of Climate Change Litigation on Corporate Due Diligence (starting page 27)

  • Speakers in this webinar discussed the scope of impact that climate change litigation can have on corporate due diligence practices—and indeed whether it is even intended to do so—and examined the current and potential effectiveness of litigation to drive better due diligence in the future.
  • Features speakers Jolene Lin (Associate Professor – National University of Singapore and Faculty of Law, Director – Asia Pacific Centre for Environmental Law); Annalisa Savaresi (Senior Lecturer in Environmental Law at Stirling University and Director for Europe of the Global Network on Human Rights and the Environment); Olanrewaju Fagbohun (Professor of Environmental Law and Vice Chancellor – Lagos State University); Stijn Franken (Partner – NautaDutilh); Holly Stebbing (Partner – Norton Rose Fulbright LLP); Sudhanshu Swaroop QC (Barrister, Twenty Essex); and Ingrid Gubbay (Head of Human Rights and Environmental Disputes – Hausfeld)

Episode 3: Mandatory Human Rights Due Diligence Laws: What Are Their Implications Regarding Corporate Climate Change Impacts? (starting page 48)

  • Speakers in this webinar examined the implications for including climate change impacts in existing and proposed mandatory human rights due diligence laws and discussed how these new laws might be applied to the climate change due diligence practices of companies.
  • Features speakers Surya Deva (Associate Professor – City University of Hong Kong, School of Law, Member – UN Working Group on Business and Human Rights); Chiara Macchi (Marie Skłodowska-Curie Researcher – Wageningen University & Research Law Group Associate Member – Essex Business and Human Rights Project); Kathia Martin-Chenut (Senior Researcher – CNRS-ISJPS, University of Paris 1 Panthéon-Sorbonne and Deputy Director of Scientific Affairs – Research Mission on ‘Law and Justice’); Paul Mougeolle (Project Coordinator and Legal Advisor – Notre Affaire à Tous, and PhD Candidate – Paris Nanterre University & University of Potsdam); Lena Walker (PhD Student – University of Münster, Institute for Environmental and Planning Law); Roda Verheyen (Partner – Rechtsanwälte Günther); Merryl Lawry-White (Associate – Debevoise & Plimpton); and Sara Seck (Associate Professor at the Schulich School of Law and Marine & Environmental Law Institute at Dalhousie University, Canada)
  • Chiara Macchi’s remarks (p. 52) delve into elements of climate due diligence and the intersection with the UN Guiding Principles’ focus on human rights due diligence. We discussed her fuller paper last week here.

Episode 4: Meeting the Standard: What Does Adequate Human Rights Due Diligence for Climate Change Look Like in Practice? (starting page 69)

  • Speakers in this webinar discussed the steps that companies could take to “meet a legal standard for human rights due diligence for their climate change impacts,” including practical examples and recommendations for the private sector.
  • Features speakers Manson Gwanyanya (Southern & Anglophone West Africa Regional Researcher & Representative Researcher Business & Human Rights Resource Centre); Joseph Wilde-Ramsing (Senior Researcher – SOMO and Coordinator – OECD Watch Network); Colleen Theron (CEO of Ardea International); Nabylah Abo Dehman (Manager, Social Issues, Principles for Responsible Investment); Jason Reeves & Deepa Sutherland (Zelle LLP); and Catie Shavin (Director of the Global Business Initiative on Human Rights)
  • Catie Shavin’s remarks (p. 87) specifically address how climate-related actions impact human rights and provide practical actions companies can take to bring human rights due diligence and climate closer together. These include building a shared vision and language between the human rights team and the climate team, integrating human rights due diligence into early decision- making, and integrating human rights expertise into company approaches to crisis management.

Read the full report, including each speaker’s remarks, here: British Institute of International and Comparative Law, Human Rights Due Diligence for Climate Change Impacts: Webinar Series Report (January 2021).

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