The urgent need for policy coherence to achieve rights-respecting climate action

Legal action should not substitute a holistic approach to green transition.



Image by Vitor Bitencourt Silva from Pixabay 


Climate change is the defining crisis of our time and one of the greatest human rights challenges. Addressing it requires immediate action by everyone but especially by the main contributors to climate change. Human rights practitioners and advocates have started to turn their attention towards the business and human rights regime to compel the necessary climate action by corporations that are undeniably responsible for a significant amount of greenhouse gas emission. 

However, the core instrument of the business and human rights regime—UN Guiding Principles on Business and Human Rights (UNGPs)—does not explicitly address climate change. Although the UN Office of the High Commissioner clarified that UNGPs are relevant for climate action, no further guidance has been offered. 

Now, going into a new decade, the UNGPs10+ project that aims to foster widespread implementation of the UNGPs might present an opportunity to fill that gap. Among other topics, the project is meant to focus on how to apply UNGPs in the context of climate change mitigation efforts as well as in the transition to a greener economy. This is a timely endeavour. 

The existing lack of focus on climate change-related human rights impacts by businesses has fragmented the efforts to achieve rights-respecting climate action. Therefore, there is an urgent need to foster policy coherence between states’ and corporations’ climate action and human rights and holistic sustainability goals, including the UN Sustainable Development Goals (SDGs). 

Current guidance 

The lack of attention to climate change in the UNGPs has meant that other international expert groups have taken on the task to clarify the responsibilities of the private sector in climate action, especially regarding climate mitigation. Such instruments include the Oslo Principles on Global Climate Change Obligations and Principles on Climate Obligations for Enterprises. Although it is commendable that further responsibilities of the private sector have been articulated, these two sets of principles do not adopt a rights-holder-centred lens.

The two principles address climate change as a company’s financial risk management issue (pdf) rather than a basis for human rights responsibilities. Lack of rights-holders perspectives threatens to undermine the holistic sustainability efforts that are needed to safeguard human rights and many of the SDGs, for example, eradication of poverty (SDG 1), decent work and economic growth (SDG 8), affordable and clean energy (SDG 7). 

Climate litigation against Carbon Majors 

Civil society actors are now setting the bar for accountability for climate change and human rights due to the lack of agenda-setting by the states. National NGOs have taken up the specific advocacy and regulatory tool that is human rights-based climate litigation. Similarly to the “rights turn” in climate litigation against the states (e.g. Urgenda v the Netherlands, Neubauer et al. v Germany), civil society organizations have initiated legal action against large greenhouse gas emitters (‘Carbon Majors’). 

There is an urgent need to foster policy coherence between states’ and corporations’ climate action and human rights and holistic sustainability goals.

For instance, the Carbon Majors Inquiry by Greenpeace asked the Commission of Human Rights of the Philippines to investigate whether Carbon Majors have breached their human rights responsibilities. As recently as in May 2021, the Hague District Court agreed with the plaintiffs led by the NGO Friends of the Earth Netherlands (Milieudefensie) that Royal Dutch Shell must reduce its emissions by 45% by 2030. The Court relied on national duty of care commitments that also include responsibilities deriving from the UNGPs. A similar case is ongoing against the French Carbon Major Total. Tessa Khan and Ben Batros have previously written that the number of such cases “are likely to grow as the gap increases between the urgency of mitigating climate change and confidence in political and corporate decision-making”. 

However, although such cases are undoubtedly an important victory for climate action, legal action should not substitute a holistic approach to green transition. Khan and Batros emphasize that litigation must be embedded in a broader theory of change. Yet, the UN Special Rapporteur on extreme poverty has clearly stated that “corporate actors cannot and will not, of their own accord, be capable of promoting a comprehensive approach that ensures the sort of economic and social transformation that climate change mitigation demands”. States must take a more ambitious lead in regulating green transition in a way that ensures policy coherence and does not neglect social sustainability aspects. The UNGPs10+ project could provide valuable input to these efforts. 

Rights-respecting climate action

Nicola Jäger writes that “It is feared that the rush towards a net zero carbon future will come at the expense of the vulnerable.” In light of the IPCC’s stark sixth assessment report that concluded that atmosphere, ocean and land warming is unequivocally the result of human influence, there is additional urgency to ensure that the climate measures taken are rights-respecting. Previous climate action measures, such as the Clean Development Mechanism (CDM) established under the Kyoto Protocol, did not include human rights safeguards. The lack of safeguards allowed projects to be approved without consultations with local communities leading to human rights harm and even exacerbated the impacts of climate change. The previous experience illustrates the need to incorporate human rights safeguards to the design of the climate mitigation measures. 

The need for policy coherence does not only concern transitioning from a fossil fuel-based economy to a green economy but is equally relevant in the renewables sector. The urgency of climate action has created a boom in the renewable energy industry. However, there have recently been many reports uncovering human rights abuses in the renewables supply chains

The EU has now an example of such policy coherence that incorporates climate action with human rights protection. The EU regulation establishing a taxonomy for sustainable business activities intends to direct investments towards business projects and activities that classify under one of the six environmental objectives that include climate change mitigation and climate change adaptation. These business activities must also comply with minimum social safeguards. The latter means that the business activity must align with the UNGPs and OECD Guidelines for Multinational Enterprises. Currently, the compulsory reporting requirements do not specify any tangible KPIs or uniform methodology that would guarantee that corporations have conducted such minimum due diligence. It will have to be carefully observed whether the operational-level compliance is enough to ensure the necessary policy coherence and steer investments towards business activities that ensure just transition and holistic sustainability. 

This regulation could be a valuable case study for the UNGPs10+ project to evaluate the level of guidance and requirements that are needed to ensure rights-respecting climate action. Bringing closer the two silos of climate action and human rights protection is the only way we can ensure that we leave no one behind.

 

ORIGINALLY PUBLISHED: October 20, 2021

Els Heile is a human rights and sustainability regulations consultant advising NGOs and corporations. She is a recent graduate of the LL.M. International Human Rights Law programme at Lund University.


 

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