– By Sara L. Seck –
Associate Professor, Dalhousie Schulich School of Law; Senior Fellow, CIGI ILRP
Photo by: Alex L’aventurier
In 2011, the United Nations (UN) Human Rights Council unanimously endorsed Guiding Principles on Business and Human Rights (UNGPs, available here). A polycentric governance framework comprised of three interdependent pillars, the UNGPs provide that states have a duty to protect human rights from violations associated with business conduct; that businesses have a responsibility to respect human rights throughout their operations; and that access to remedy must be available for those whose rights have been violated. At the same time, the Human Rights Council established a Working Group on Business and Human Rights tasked with implementation of the UNGPs. From May 23 to June 1, 2017, the Working Group conducted a country visit to Canada (see, here), and in the spring of 2018 the Working Group will provide a full report of its Canadian country visit to the Human Rights Council. As a senior fellow with CIGI’s International Law Research Program, I recently published a research paper on the visit of the working group to Canada (available here), with the aim of both introducing the UN Guiding Principles, and speculating as to the kinds of issues that might be considered during the visit. My paper considers previous examples of country visits by members of the Working Group including a visit to the United States, as well as the contents of National Action Plans put forward by various states on implementation of the UNGPs (see further here).
The International Law Association (ILA) established a Study Group on business and human rights in 2012, made up of ILA members from around the world (see further here; I am the only Canadian ILA member). I contributed to leading discussions held at the 2014 ILA meetings in Washington DC, as the ILA Study Group consulted with other ILA members on how best to approach its mandate moving forward (see report available here). After further consideration, ILA Study Group members are currently drafting submissions on discrete topics which will be integrated into a final report for the 2018 meeting in Sydney Australia. Among topics under discussion are business and human rights in public procurement; the Inter-American human rights system; clauses in commercial contracts; and lessons from ILO experiences. The topic of my contribution to the work of the Study Group is the relationship between business and human rights, and climate change (draft paper, available here).
Other ILA Committees and Study Groups have considered business and human rights issues tangentially to their main studies. For example, the Study Group on Due Diligence in International Law, of which I was a member, released its final draft report in August 2016 (available here), in which it considered the similarities and differences between human rights due diligence under the UN Guiding Principles, and due diligence in other areas of international law. The Committee on Non-State Actors (NSAs), with Canadian members Noemi Gal-Or and Robin Hansen, considered the role of corporations in international law along with other NSAs, and held conferences and published books along the way (see 2016 report, available here; see also edited book, here, arising from a Canadian conference held to support the work of the Committee). Two earlier ILA committees also produced materials of relevance to the access to remedy pillar of the UNGPs, notably the Sofia Guidelines on Best Practices for Civil Litigation for Human Rights Violations (available here) and the Rules on the Transnational Enforcement of Environmental Law (available here). Climate change has also been a subject of study by the ILA, resulting in 2014 Principles Relating to Climate Change (available here). However, while the ILA climate change principles offer insights into the relationship between state duties to address climate change and sustainable development, equity, international cooperation, and obligations of prevention and precaution, for example, they are largely silent on the link between climate change and human rights, and offer nothing on business responsibilities.
As noted above, my draft paper for the ILA Study Group on Business and Human Rights explores the relationship between climate change and human rights, drawing in part on the 2016 Report on climate change and human rights prepared by John Knox in his capacity as the Special Rapporteur on Human Rights and the Environment for the UN Human Rights Council (available here). Knox explores procedural and substantive obligations, including a duty of cooperation, and the special needs of vulnerable groups in the climate context, and briefly notes that his findings are equally applicable to all three pillars of the UNGPs (see Knox at para 66; this is consistent with the OHCHR’s Key Messages on human rights and climate change, which concludes that businesses are also duty-bearers and must be accountable for their climate impacts, see here). Yet, it remains challenging to bridge the silos between international climate law, and international law relating to business and human rights. For example, until the 2015 Paris Agreement, the key international climate law frameworks were essentially silent on human rights, and despite powerful submissions by the OHCHR among others, the only explicit reference to human rights in the Paris Agreement is in its Preamble (although as argued by Patrícia Galvão Ferreira, incorporation of sustainable development language in the Paris Agreement implicitly incorporates human rights, see CIGI paper here). It is similarly challenging to overcome skepticism that climate change is a business and human rights issue as the focus is often on obtaining social licence from directly affected communities where easily identifiable and clearly salient risks arise (see for example John Ruggie’s keynote address to UN Forum 2016, available here; and my related CIGI commentary, available here). While other studies have been undertaken on the topic, including the International Bar Association’s Climate Justice Report (available here), and the Oslo Principles on Global Climate Change Obligations (available here), none seem to fully align with the business responsibility under the UNGPs, nor do they link human rights and climate change explicitly to indigenous rights. This is an issue of immense importance in the Canadian context given the devastating impact of climate change on northern indigenous communities (see especially Sheilah Watt Cloutier, The Right to Be Cold, here). Yet this does not (yet) appear to feature in the discussions over implementation of business responsibilities for human rights in the Canadian context. It remains to be seen whether the Canadian country visit of the Working Group on business and human rights will change this, or whether ILA study groups and committees will delve more deeply into this issue in future work.