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Draft Guidelines on Human Rights and the Environment – Submission in Response to the Call for Inputs by UN Special Rapporteur

imagesThe Business, Human Rights and the Environment Research Group at the University of Greenwich (BHRE), led by Dr Olga Martin-Ortega, and of which I am an associate member, answered the call for inputs on the Draft Guidelines on Human Rights and Environment, prepared by the UN Special Rapporteur on Human Rights and the Environment. Dr Martin-Ortega and myself were the main authors of the submission, with input from Dr. Opi Outhwaite and Dr. Daniel Aguirre.

Rationale for the submission

We welcome the Draft Guidelines on Human Rights and the Environment (hereinafter Draft Guidelines) and highly regard the work of the UN Special Rapporteur on the issue of human rights obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment. This submission aims to support this work and provide further insights to help ground it into current international law and policy developments. Our recommendations seek to frame the Draft Guidelines within the current developments regarding business and human rights, environmental rights, children’s rights and international criminal justice.

International human rights law and environmental law have advanced greatly, both substantively and procedurally, to protect the rights of those affected by environmental damage and guarantee the enjoyment of a safe, clean, healthy and sustainable environment. These advancements have both widened the scope of State obligations and increased the responsibilities of third parties, in particular corporations, towards human rights and the environment.

In this regard, we believe it is important that the Draft Guidelines further reflect these advancements and more decisively highlight the role of the private sector in harming human rights and the environment, and addressing such harms. The harmonisation of language is particularly important in order to consolidate increasing State human rights obligations and efforts to hold corporations accountable for the impact of their actions and business relations. This is why this submission recommends the Draft Guidelines include some of the terms and concepts which are today consolidated elements of the business and human rights scholarship and practice.

It is important that the Draft Guidelines builds on other international legal instruments which are today widely accepted by the international community, including States, Intergovernmental Organisations, NGOs and corporations themselves. These include the Convention on the Rights of the Child (1990); the Aarhus Convention on Access to Information, Public Participation and Decision-Making and Access to Justice in Environmental Matters (1998), the UN Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law (2005); UN Guiding Principles on Business and Human Rights (2011), OEDC Guidelines on Multinational Enterprises (2011), the UNICEF-Save the Children-Global Compact Children Rights and Business Principles (2012); the IFC Performance Standards on Environmental and Social Sustainability (2012); the World Bank Environmental and Social Safeguard Policies (2017) and the Policy Paper of the International Criminal Court Office of the Prosecutor on Case Selection and Prioritisation (2016), as well as the work of the UN Working Group on Business and Human Rights, and previous reports from the Special Rapporteur himself.

Current gaps in the Draft Guidelines

1. State duty to protect from harm by third parties, including corporations 

Most of the violations of human rights related to harm to the environment are directly connected with corporate activity. It is the private sector which produces the highest volume of pollution and harmful activity which has a direct impact on the full enjoyment of human rights. The State duty to protect human rights against third party action is long established in international human rights, and has been further consolidated since the publication of the UN Guiding Principles on Business and Human Rights and States National Action Plans to implement them. Considering this, we recommend that the Draft Guidelines includes a reference to the private sector, specifically corporations, in the General Obligations section, in order to reinforce this existing duty and harmonise language with current developments in international law.

2. Corporate responsibility to respect

It is widely accepted today that business have a responsibility, which is no longer exclusively a social expectation, to respect human rights and conduct themselves with due diligence in the development of their commercial activities and partnerships. Pillar II of the UN Guiding Principles on Business and Human Rights establishes the basic elements of this responsibility, which has been consolidated and further developed by other intergovernmental instruments, such as the OECD Guidelines on Multinational Enterprises, the EU Corporate Social Responsibility Strategy, National Action Plans on the implementation of the UN Guiding Principles on Business and Human Rights and prolific corporate statements and practice. Considering this, we recommend adding a fourth General Obligation establishing that every corporation has the responsibility to respect human rights from harm produced by environmental damage.

3. Right to remedy and access to justice

The right to remedy and its correlating State duty to provide access to justice are well established both in international human rights law and environmental law. The Aarhus Convention on Access to Information, Public Participation and Decision-Making and Access to Justice in Environmental Matters does so in relation to public decision-making and it is the core of Pillar III of the UN Guiding Principles on Business and Human Rights, obliging States to guarantee an effective remedy and corporations to participate in remediation efforts. State obligations to provide remedy and reparations for victims are further reinforced in the case of gross violations of human rights and serious violations of international humanitarian law, by UN Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law. The Draft Guidelines should build on the work of the Special Rapporteur himself, who in 2013 extensively elaborated on the matter (A/HRC/28/61, 3 February 2015, p. 12 et seq.). As well established, victims’ lack of resources and the inequality of arms brought by it is one of the most prevalent obstacles to access to justice. We suggest the Draft Guidelines add a strong reference to Guideline 8 in the part on Procedural Obligations to States obligation to guarantee access to justice, by providing the adequate procedures, resources and support to victims of environmental and human rights harm.

4. Rights of those who are most vulnerable to environmental harm: children

As the Draft Guidelines highlight, children are particularly vulnerable to environmental harm. The Convention on the Rights of the Child recognizes the right of children to a healthy and safe environment, as one of the elements to ensuring the healthy development of each child. The UNICEF-Save the Children- Global Compact Principles on Business and Children establish specifically that “All business should…[r]espect and support children’s rights in relation to the environment and to land acquisition and use” (Principle 7). When developing the corporate responsibility to respect in relation to children’s rights the Principles elaborate respecting children’s rights in relationship to the environment as: “i. When planning and implementing environmental and resource-use strategies, ensure that business operations do not adversely affect children’s rights, including through damage to the environment or reducing access to natural resources; ii. Ensure the rights of children, their families and communities are addressed in contingency plans and remediation for environmental and health damage from business operations, including accidents”. Therefore, we suggest a reference to the duty of the State to regulate business to specifically respect children’s rights and remedy harm (in Guideline 14) as well as a direct reference to the corporate responsibility to respect children’s rights in relation to the environment and contribute to harm remediation (by adding a further Guideline).

5. Rights of those who are most vulnerable to environmental harm: conflict situations and situations of mass and systematic violence

During situations of armed conflict, violence in weak governance zones and mass and systematic abuses of human rights, States have a heightened duty to protect human rights. The UN Guiding Principles on Business and Human Rights further develop the obligations of States to engage with business to identify, prevent and mitigate the human rights-related risks of their activities and business relationships in these environments as well as provide adequate assistance to business enterprises to assess and address the heightened risks of abuses; deny access to public support and services for a business enterprise that is involved with gross human rights abuses and refuses to cooperate in addressing the situation; and ensure that their current policies, legislation, regulations and enforcement measures are effective in addressing the risk of business involvement in gross human rights abuses (UN GP 7). This applies too to violations resulting from environmental harm. As argued above, the duty of the State to provide remedy, access to justice and reparations to victims in these situations is well established in international human rights law. Furthermore, the ICC Prosecutor, in her recent Policy Paper on Case Selection and Prioritisation (on this, please see a short blog post here and a more detailed article here), has highlighted how in order to consider the cases which merit prioritisation “the impact of the crimes may be assessed in light of, inter alia, the increased vulnerability of victims, the terror subsequently instilled, or the social, economic and environmental damage inflicted on the affected communities” (para. 41). In this context, the Office of the Prosecutor will give particular consideration to prosecuting crimes under the Rome Statute (war crimes, crimes against humanity and genocide) that are committed among others by means of, or that result in, inter alia, the destruction of the environment (ibid). Following these considerations, we recommend that the Draft Guidelines contain a reference to persons who are vulnerable due to the context in which the violations take place including armed conflict, weak governance and mass and systematic violence (Guideline 13). The obligations which the State is subject to in this case should include ensuring that the normative framework criminalises the actions which amount to international crimes in international criminal law (Guideline 14).

Recommendations

We recommend:

a. Including specific reference to current international law instruments which directly interact and further ground the Draft Guidelines in the Preamble. These include, among others:

  • · Convention on the Rights of the Child (1990);
  • · Aarhus Convention on Access to Information, Public Participation and Decision-Making and Access to Justice in Environmental Matters (1998);
  • · UN Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law (2005);
  • · UN Guiding Principles on Business and Human Rights (2011);
  • · OEDC Guidelines on Multinational Enterprises (2011);
  • · UNICEF-Save the Children-Global Compact Children Rights and Business Principles (2012);
  • · IFC Performance Standards on Environmental and Social Sustainability (2012);
  • · World Bank Environmental and Social Safeguard Policies (2017), and
  • · Policy Paper of the International Criminal Court Office of the Prosecutor on Case Prioritisation and Selection (2016),
  • · Reports from the UN Working Group on Business and Human Rights and the Special Rapporteur himself.

b. Including a reference to the private sector, specifically corporations, in the General Obligations section, in order to reinforce this existing duty and harmonise language with current developments in international law.

c. Adding a fourth General Obligation establishing that every corporation has the responsibility to respect human rights from harm produced by environmental damage.

d. Adding add a strong reference to Guideline 8, Procedural Obligations, to States obligation to guarantee access to justice, by providing the adequate procedures, resources and support to victims of environmental and human rights harm.

e. Inserting a reference in Guideline 14 to the State duty to regulate business to specifically respect children’s rights and remedy harm.

f. Adding a further Guideline (Guideline 16) which contains a direct reference to the corporate responsibility to respect children’s rights in relation to the environment and contribute to harm remediation.

g. Adding a reference to persons who are vulnerable due to the context in which the violations take place including armed conflict, weak governance and mass and systematic violence to Guideline 13.

h. Adding a reference to the obligations of States to ensuring that the normative framework criminalises the actions which amount to international crimes in international criminal law to Guideline 14.

Conclusions

We reiterate our support to the Draft Guidelines and our willingness to further ground them in international law developments for them to become an instrumental tool for the protection of human rights and the environment. We look forward to the final version of the Draft Guidelines.

 


Can the ICC Combat the Illegal Exploitation of Resources and ‘Land-Grabbing’?

10.5771_2192-1741-2017-1_big (002)It is a pleasure to welcome back Dr Evelyne Schmid as a guest poster on ‘Rights as Usual’. Dr Schmid is Associate Professor of International Law at the University of Lausanne. This post is hers and looks at the ICC Office of the Prosecutor’s Policy Paper on Case Selection and Prioritization, which I discussed here and here, from a different angle.

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In September 2016, the Chief Prosecutor of the International Criminal Court (ICC) in The Hague announced that her Office intends to pay particular attention to prosecuting ‘crimes that are committed by means of, or that result in, inter alia, the destruction of the environment, the illegal exploitation of natural resources or the illegal dispossession of land’. A few days ago, Nadia convincingly argued that the statement in this Policy Paper on Case Selection and Prioritization holds considerable potential from a business and human rights perspective. Indeed, it is probable that the Policy Paper increases the chances that corporate actors and business activities will make it on the radar screen of the Office of the Prosecutor.

In addition, the Policy Paper is interesting from the point of view of economic, social and cultural rights and, in particular, the debate on whether abuses of economic, social and cultural rights could and/or should be part of transitional justice endeavours, including international criminal proceedings or other mechanisms that employ this body of law. In an article published earlier this summer, I add my two cents on the Policy Paper. The article was published in German in a journal issued by the German Association of Peace and Conflict Studies. I assess the reactions to the policy statement, ranging from enthusiasm to criticism that the Chief Prosecutor would give the ICC a new pretext for exclusively dealing with the Global South. What should we make of this controversy and what implications might the announcement of the Prosecutor have for the role of international law in transitional justice more broadly? Based on some of my previous research on the area of overlap between international crimes and violations of economic, social and cultural rights, I outline the limitations and potentials of international criminal law as an instrument against the illegal exploitation of resources and the illegal dispossession of land (‘land-grabbing’). Overall, my conclusions can be summarised as follows:

  1. The statement in the Policy Paper is not about an expansion of international criminal law. Obvious as it seems, this conclusion is important. The Policy Paper and the Chief Prosecutor are intending to shed particular light on crimes (or aspects of crimes) that may have been overlooked in the past but there is no question of expanding or otherwise changing the scope of existing international crimes contained in the ICC Statute. We should not assume that everything related to economic, social or environmental aspects of international crimes is about an expansion of the law as it stands today.
  2. Given that the universe of abuses is unfortunately vast and the possibility is real that there are accepted Rome Statute crimes ‘that are committed by means of, or that result in, inter alia, the destruction of the environment, the illegal exploitation of natural resources or the illegal dispossession of land’, the Office of the Prosecutor is not abandoning the ‘core mandate’ of the ICC by paying attention to those alleged crimes.
  3. The idea of prosecuting such abuses is also not inherently more ‘symbolic’ than other prosecutions of alleged international crimes. The international crimes mentioned by Fatou Bensouda deserve to be taken seriously, for much the same reasons as other international crimes.
  4. At the same time, an increased focus of the Office of the Prosecutor on such abuses, of course, is not, will not and cannot be a silver bullet to solve all (or even many) problems related to allegations of abuses of economic, social or rights. Rather, international criminal law has serious, unavoidable and largely justified limitations. International criminal proceedings or other processes based on international criminal law are only a small part of the tools and mechanisms that can be employed in attempts to deal with the legacies of an abusive past.

In any event, I believe it is a very positive development that the Office of the Prosecutor is explicitly engaging with some of the very thorny questions of selectivity and case-selection at the ICC. Quick assumptions and a priori considerations that ‘typical crimes’ have certain characteristic and not others are not only legally inaccurate but risk failing victims and preclude us from making the most of international criminal law. Moreover, the statement of the Chief Prosecutor in the Policy Paper sends an important signal to national criminal authorities by flagging the relevance of environmental, economic, social and land-related aspects of international crimes.


New article – the ICC Office of the Prosecutor’s Policy Paper on Case Selection and Prioritization from the Perspective of Business and Human Rights

In September 2016, the Office of the Prosecutor of the International Criminal Court issued a policy paper on Case Selection and Prioritization in which it indicated that the Office will now ‘give particular consideration to prosecuting Rome Statute crimes that are committed by means of, or that result in … the destruction of the environment, the illegal exploitation of natural resources or the illegal dispossession of land’. I wrote a short blog post on this when the policy paper came out. The longer piece I wrote on the policy paper was published last week in the Journal of International Criminal Justice.

Because of the significant investment and technological capacities required to commit the crimes listed in the policy paper, multinational corporations, particularly in the mining and agribusiness sectors, play an active role in the perpetuation of these abuses. This is why the new policy paper has attracted the attention of those working in the business and human rights area in a context of prevalent impunity for such abuses. Against this background, the article evaluates the significance of the policy paper for the field of business and human rights. It does so by pointing to the current deficiencies of both international criminal law and international human rights law regarding business accountability, and by assessing whether, and if so how, the new policy paper can tackle those deficiencies. It also explores other areas of business activity the policy paper could have covered but did not, with references for example to the crimes associated with private companies running detention centres. The article concludes that, despite its limitations, the policy paper holds considerable potential from a business and human rights perspective.


EU Fundamental Rights Agency Calls for Better Access to Remedies through Criminal Justice

Source: FRA website

It is a pleasure to welcome Alessandra De Tommaso as a guest poster on ‘Rights as Usual’. Alessandra is a PhD candidate at Middlesex University School of Law in London. She works on the challenges arising from corporate criminal liability under international criminal law. This post is hers.

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On 10 April 2017, the Fundamental Rights Agency (FRA) published an Opinion on Improving access to remedy in the area of business and human rights at the EU level, providing advice on how to ensure access to remedy for victims of business-related human rights abuses. This blog post briefly presents the main aspects of the Opinion, and then focuses on the area of criminal legal remedies for victims of business-related human rights abuses. In that area, FRA recommends that existing instruments be better implemented and calls for more cooperation among states when investigating cross-border corporate crimes.

Main Aspects of the Opinion

The Opinion was sought by the Council of the European Union in its Conclusions on business and human rights of 20 June 2016. In the Opinion, FRA calls for more action to ensure access to remedies for victims of business-related human rights abuses. Too often existing legal and practical barriers leave victims without opportunity for effective remedy. The EU and its Member States are therefore advised to take all the appropriate steps to remove these obstacles and guarantee access to remedy to victims.

FRA’s analysis covers the areas of judicial and non-judicial remedies, as well as issues related to their effective implementation. Based on its findings, FRA formulated 21 specific opinions on what actions the EU should undertake to increase access to remedies in the field of business and human rights. Some of the suggestions include, for instance, facilitating access to legal aid for victims of business-related human rights abuses, improving access to remedy in extra-territorial cases, strengthening the role of non-judicial mechanisms in the business and human rights field, and improving data collection on complaints and compensation.

Criminal Justice

FRA’s findings suggest that more could be done at the EU level to ensure access to effective remedies through criminal justice in the area of business and human rights. Even though a number of existing EU instruments require Member States to criminalise some forms of serious business-related human rights violations, these instruments are not used at their intended capacity. The Opinion mentions, in particular, the Employers Sanctions Directive (2009/52/EC), which obliges EU Member States to criminalise severe forms of labour exploitation, and the Anti-Trafficking Directive (2011/36/EU), which establishes minimum rules concerning the definition of criminal offences and sanctions in the area of trafficking in human beings. Both directives oblige EU Member States to ensure that legal persons can be held accountable for offences criminalised according to these two instruments. However, research conducted by FRA into the implementation of these instruments shows a lack of states’ commitment to holding business companies to account for their involvement in severe forms of labour exploitation and trafficking in human beings. This failure to ensure full implementation of these instruments at national level is a serious issue that needs to be addressed by the EU institutions. The EU is therefore strongly advised to make “greater efforts to ensure proper implementation in the Member States of the existing EU criminal law instruments that are relevant to business and human rights.”

Another aspect that needs further consideration at the EU level is cooperation among Member States in investigating corporate crimes. Due to the often transnational nature of business-related human rights abuses, effective and specific cross-border cooperation mechanisms are essential to ensure proper investigation of corporate crimes. In this regard, the Opinion rightly underlines how the EU can play “a unique role” in facilitating cross-border investigations by making greater use of existing resources, such as Eurojust.

Overall, what is clear from the Opinion is that more needs to be done to improve victims’ access to remedies through criminal justice in the field of business and human rights. Even though advances have been made in recent years, the lack of proper implementation of existing instruments prevents victims from fully exercising their rights to remedies. The EU, therefore, must adopt a more proactive approach to ensure states’ commitment in this regard.


The Moment of Truth Has Come – US Supreme Court to Decide whether the Alien Tort Statute “Categorically Forecloses Corporate Liability”

On 3 April 2017, the US Supreme Court granted certiorari in Jesner v Arab Bank, PLC. The issue to be decided is whether the Alien Tort Statute (ATS) “categorically forecloses corporate liability”. If the Supreme Court decides that the ATS does indeed categorically foreclose corporate liability, it will be the end of ATS-based business and human rights litigation in the United States. This is a big deal and a case that will no doubt be of great interest to human rights scholars and practitioners.

Those following business and human rights litigation in the United States will remember that the US Supreme Court granted certiorari on the same point before. This was in 2011 in the Kiobel et al v Royal Dutch Shell case. In 2010, the Court of Appeals for the Second Circuit had ruled that the Alien Tort Statute didn’t allow corporate liability. In February 2012, oral arguments were held before the Supreme Court on this point. However, unexpectedly, the Supreme Court later asked the parties to submit supplemental briefs addressing a different question, that of jurisdiction. In April 2013, the US Supreme Court held that following the presumption against the extraterritorial application of statutes, only in the rarest of circumstances will courts have jurisdiction, under the ATS, over matters which fall under the jurisdiction of another sovereign state. For the US federal courts to be able to exercise jurisdiction, the Court further noted, the case must “touch and concern the territory of the United States with sufficient force” (see my blog post on this).

As disappointing as the Kiobel decision was for the human rights community, there was at least one reason to rejoice: the principle that corporations can be sued under the Alien Tort Statute was intact. The Court refused to address the question directly but it is hard to reconcile the Kiobel decision with the idea that corporations cannot be sued at all under the Alien Tort Statute. By noting for example that “it would reach too far to say that mere corporate presence” in the United States is enough to subject a defendant to ATS liability, the Supreme Court implied that something more than corporate presence could subject corporate defendants to such liability. If it was the Court’s intention to reject corporate liability under the ATS altogether, why make this point?

Logically, therefore, the US Supreme Court should decide that the ATS does not categorically foreclose corporate liability; and the ATS should remain an important tool in the fight against corporate impunity for human rights violations. I hope I am right, as the opposite decision would be a serious blow to global business and human rights litigation.


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