Introduction
Peace is a fundamental prerequisite to sustainable development and the full enjoyment of human rights, including the right to a clean, healthy and sustainable environment.Footnote 1
Potential harm to human rights and the environment, including by corporate actors, is amplified in situations of conflict. This article will focus on applying the right to a clean, healthy and sustainable environment (right to a healthy environment) in relation to armed conflicts and corporate responsibility. In particular, the article will analyze and compare due diligence requirements in the EU Conflict Minerals Regulation (EU CMR) and the International Law Commission (ILC) Principles on Protection of the Environment in Relation to Armed Conflicts (ILC Principles/Draft Principles)Footnote 2 and examine how these align with the right to a healthy environment.
A number of recent developments have brought these issues to the forefront, making an analysis of the right to a healthy environment in relation to armed conflicts and corporate responsibility particularly timely. In 2021, the United Nations (UN) Human Rights Council (HRC) recognized the right to a healthy environment in its Resolution 48/13; this was followed by UN General Assembly Resolution 76/300, on the same topic, in 2022. Both resolutions address the role of non-State actors and businesses. ILC Principle 10, adopted by the ILC and subsequently taken note of by the UN General Assembly in 2022, focuses on due diligence by business enterprises, referring to the right to a healthy environment in the associated commentary. The EU CMR, which entered into force on 1 January 2021, provides another vehicle for understanding due diligence requirements in relation to armed conflicts and the interconnectedness of human rights, environmental protection and governance.Footnote 3 In addition, the importance of ensuring access to remedy and addressing potential harm to human rights and the environment by corporate actors has received increasing attention, including in relation to due diligence initiatives and litigation.
The need to better understand the nexus of human rights, the environment and corporations has also been highlighted by scholars.Footnote 4 While research has been undertaken on the environment and human rights and the right to a healthy environment generally,Footnote 5 this article seeks to contribute to an improved understanding of due diligence and the roles and responsibilities of corporate actors in relation to armed conflicts. In addition, while research exists on the nexus of the environment and human rights, and on the nexus of the environment and conflict,Footnote 6 these two areas have seldom been integrated.
To address this gap, this article analyzes due diligence requirements in ILC Principle 10 and the EU CMR in light of the right to a healthy environment and examines the effects on corporate responsibility. It begins by outlining the right to a healthy environment and the impacts of armed conflict on the environment and human rights, followed by a discussion on due diligence requirements in international law, international human rights law and international environmental law, and the tendency toward integrated human rights and environmental due diligence. The article then compares and analyzes the due diligence requirements in ILC Principle 10 and the EU CMR. Finally, the article concludes with a few suggestions and recommendations for further research.
The right to a healthy environment
In July 2022, the UN General Assembly adopted a resolution recognizing the right to a healthy environment.Footnote 7 The text was similar to a resolution adopted by the HRC in 2021, recognizing the right to a healthy environment and inviting the General Assembly to consider the matter.Footnote 8 The two resolutions refer to the role of businesses, with both recalling the UN Guiding Principles on Business and Human Rights (UNGPs), which “underscore the responsibility of all business enterprises to respect human rights”, and with the HRC resolution further specifying that this includes “the rights to life, liberty and security of human rights defenders working in environmental matters, referred to as environmental human rights defenders”.Footnote 9
While the right to a healthy environment has not been expressed in any treaty at the international level, binding formulations of the right to a healthy environment exist at the regional level, and at least 150 countries have “constitutional rights and/or provisions on the environment”.Footnote 10 In addition, Schabas considers that there is “compelling evidence for a human right to a safe, clean, healthy, and sustainable environment under customary international law”.Footnote 11 For instance, a large number of States have referred to environmental concerns and the right to a healthy environment as part of the Universal Periodic Review.Footnote 12
The HRC and General Assembly resolutions recognizing the right to a healthy environment were preceded by several decades of discussion and deliberation on the linkages between human rights and the environment. The 1972 Stockholm Declaration, which has often been referred to as the birth of modern international environmental law,Footnote 13 outlined the “fundamental right to freedom, equality and adequate conditions of life, in an environment of a quality that permits a life of dignity and well-being”, and the “solemn responsibility to protect and improve the environment for present and future generations”.Footnote 14 This duty of care concept from the second part of Principle 1 of the Stockholm Declaration recurred in the 1994 report of the UN Sub-Commission on Prevention of Discrimination and Protection of Minorities (UN Sub-Commission) and the associated proposed declaration and draft principles on human rights and the environment.Footnote 15
In recent decades, human rights treaty bodies have increasingly recognized and referenced links between human rights and the environment.Footnote 16 This trend has sometimes been referred to as the “greening” of human rights.Footnote 17 As noted above, the right to a healthy environment has also been recognized and adopted as a legally binding obligation in numerous regional instruments,Footnote 18 and in domestic laws and constitutions.
The terms used to describe the right have varied across different times and geographic contexts, and the terminology has at times been criticized for being vague or open-ended.Footnote 19 While there is no universally recognized definition of the right to a healthy environment, it has often been characterized as containing substantive elements (clean air, a safe and stable climate, access to safe water and adequate sanitation, healthy and sustainably produced food, non-toxic environments in which to live, work, study and play, and healthy biodiversity and ecosystems) and procedural elements (access to information, access to meaningful participation in decision-making and access to justice).Footnote 20
Impacts of armed conflict on the environment and human rights, including the right to a healthy environment
Human rights and the environment are particularly at risk in relation to armed conflicts, in part due to governance challenges and lack of regulatory oversight in conflict-affected contexts.Footnote 21 The former Special Representative of the Secretary-General on the Issue of Human Rights and Transnational Corporations and Other Business Enterprises noted in his reports on the topic that it is “well established that some of the most egregious human rights abuses, including those related to corporations, occur in conflict zones”.Footnote 22 UNGP 7 states that the “risk of gross human rights abuses is heightened in conflict-affected areas”.Footnote 23
Accordingly, an enhanced human rights due diligence is required by companies in conflict-affected contexts in order to comply with the UNGPs and the legal obligations underpinning them.Footnote 24 In its 2018 report to the General Assembly, the UN Working Group on Business and Human Rights noted that “in high-risk operating environments, such as conflict-affected areas, business enterprises need to exercise heightened human rights due diligence”.Footnote 25 Together with the UN Development Programme (UNDP), the UN Working Group on Business and Human Rights issued guidance on heightened human rights due diligence in conflict-affected contexts in 2022.Footnote 26 The report notes that business activities in a conflict-affected area will influence conflict dynamics and that businesses should respect international humanitarian law standards.Footnote 27 As per UNGP 12, businesses may also need to consider extra standards in addition to international human rights law more generally.Footnote 28
Reference to the importance of peace and security in the context of the right to a healthy environment was made in the 1994 report of the UN Sub-Commission,Footnote 29 and in doctrinal commentary to the report and proposed declaration.Footnote 30 The 1992 Rio Declaration includes a requirement in Principle 10 that everyone shall have access to information, participation and effective remedies in environmental matters, and also states in Principle 24 that since warfare “is inherently destructive of sustainable development”, States must “respect international law providing protection for the environment in times of armed conflict and cooperate in its further development, as necessary”.Footnote 31
In more recent years, two UN Environment Assembly resolutions regarding armed conflicts and the environment have also recognized that “sustainable development and the protection of the environment contribute to human well-being and the enjoyment of human rights”.Footnote 32 The UN Special Rapporteur on the Issue of Human Rights Obligations Relating to the Enjoyment of a Safe, Clean, Healthy and Sustainable Environment (UN Special Rapporteur on Human Rights and the Environment) has noted that
more work is necessary to clarify how human rights norms relating to the environment apply to specific areas, including … the responsibilities of businesses in relation to human rights and the environment, the effects of armed conflict on human rights and the environment, and obligations of international cooperation in relation to multinational corporations and transboundary harm.Footnote 33
In addition, the 2021 HRC resolution establishing the mandate of a Special Rapporteur on the Promotion and Protection of Human Rights in the Context of Climate Change notes that “those living in conflict areas” are among those most acutely affected by the consequences of climate change.Footnote 34
The UN Working Group on Business and Human Rights has outlined key elements that enhanced human rights due diligence should meet, including complementing the requirements for businesses to assess, avoid and mitigate adverse human rights impacts with a conflict-sensitive approach.Footnote 35 In order for businesses to operate in sensitive environments, enhanced human rights due diligence should include respect for relevant standards, including international environmental law norms.Footnote 36 A better understanding of enhanced human rights due diligence is needed, including to identify and address “potential negative impacts to the environment and human health”.Footnote 37 In the following section, the article will explore opportunities for integrated human rights and environmental due diligence, and how the right to a healthy environment could contribute to enhanced due diligence standards.
Due diligence
This section will analyze the concept of due diligence and existing instruments, highlighting opportunities and challenges for their effective implementation and ability to support enhanced due diligence. Due diligence is defined by the Max Planck Encyclopedia of Public International Law as an “obligation of conduct on the part of a subject of law”.Footnote 38 The International Law Association (ILA) Study Group on Due Diligence in International Law (ILA Study Group) refers to due diligence as “concerned with supplying a standard of care against which fault can be assessed”,Footnote 39 contrasting due diligence obligations with strict or absolute liability.Footnote 40
Ever since the Corfu Channel case before the International Court of Justice (ICJ), due diligence has been linked with the principle of prevention.Footnote 41 For instance, the latest draft of the proposed Legally Binding Instrument on Business and Human Rights includes a reference to due diligence under the heading “Prevention” (Article 6.3).Footnote 42
Overall, several authors have highlighted the benefit of due diligence as a dynamic and flexible standard, making it possible to apply in many different contexts.Footnote 43 This flexibility has nonetheless also led to criticisms of such standards being “weak” or “elusive”.Footnote 44 In addition, commentators have cautioned against due diligence requirements that are too wide, citing for instance the possibility that such measures may “dilute the link with the risk, and create legal uncertainty”.Footnote 45
The link between a due diligence standard and procedural duties also provides a connection to the procedural elements of the right to a healthy environment,Footnote 46 as well as the corporate responsibilities outlined by the UN Special Rapporteur on Human Rights and the Environment in the Framework Principles on Human Rights and the Environment, calling for human rights due diligence and “meaningful consultation with potentially affected groups and other relevant stakeholders”.Footnote 47
The next sections of the article will outline key elements of the due diligence concept in international environmental law and international human rights law before identifying a few points about the trend of integrated human rights and environmental due diligence.Footnote 48
In international environmental law
Famously, the Trail Smelter case required a due diligence obligation of prevention of significant harm to another State, and not a prohibition of all possible harm.Footnote 49 The level of due diligence required depends in part on aspects such as the gravity of outcome, capabilities, and the moment of assessment.Footnote 50 The 2001 ILC Draft Articles on Prevention of Transboundary Harm from Hazardous Activities clarified that the “degree of care is proportional to the degree of hazard involved”.Footnote 51
It has been suggested that due diligence in fact has a broader scope than the prevention principle, since while the prevention principle covers “significant” or “material” harm, the due diligence requirement does not necessarily include such a restriction.Footnote 52 In Pulp Mills, the ICJ considered that the obligation to carry out an environmental impact assessment where there is a risk of a significant adverse impact “may now be considered a requirement under general international law”.Footnote 53 The judgment also included a discussion on the separation between procedural and substantive norms, with the majority noting that there is “a functional link, in regard to prevention, between the two categories of obligations …, but that link does not prevent the States parties from being required to answer for those obligations separately”.Footnote 54 In their joint dissenting opinion, Judges Al-Khasawneh and Simma stated that the “conclusion whereby non-compliance with the pertinent procedural obligations has eventually had no effect on compliance with the substantive obligations is a proposition that cannot be easily accepted”.Footnote 55
Whether the international legal ecosystem can be said to include two harm prevention standards or one standard which has evolved into a second continues to be discussed in the doctrine, as does the degree of separation between procedural and substantive norms more generally.Footnote 56 It is nonetheless clear from the decisions of the ICJ and the associated commentary that due diligence comprises both substantive and procedural aspects.Footnote 57
Due diligence in international environmental law is also informed by extraterritoriality in multilateral environmental agreements.Footnote 58 As Vordermayer notes, this tendency can be seen as a corresponding and similar development to the “progressive developments in the context of [economic, social and cultural] rights, in terms of the emergence of home state duties to regulate non-state actor activities abroad”.Footnote 59
In international human rights law
The importance and relevance of due diligence obligations for businesses has been emphasized within the international human rights ecosystem, with commentators noting that due diligence pertaining to non-State actors is “especially a relevant question in the context of business activities, as many multinational corporations wield economic and political powers all over the world”.Footnote 60 In this context, due diligence has also been described as “the standard of conduct necessary to comply with a duty to protect”.Footnote 61
Within human rights law, due diligence has been considered as outlining a standard of conduct on the one hand, and denoting management of risk on the other. Baade notes that the UNGPs seem to include both perspectives when contrasting UNGPs 15–21 with UNGPs 11 and 13.Footnote 62 This distinction is important as the focus on risk management seeks to identify risks to the business as compared to impacts on stakeholders.Footnote 63 It is interesting in this context to note that the EU CMR refers to the five-step due diligence process under the heading of “Risk Management Obligations”.Footnote 64
The UNGPs outline a four-step approach of human rights due diligence in UNGP 17;Footnote 65 this is similar to the Organisation for Economic Co-operation and Development (OECD) due diligence requirements, which delineate five steps. These standards have in turn influenced and informed the understanding of the EU CMR and ILC Principle 10, both of which explicitly state that the standards therein build upon the OECD standards and the UNGPs.
Several UN human rights mechanisms have contributed to the understanding of due diligence. In its General Comment No. 31 (2004), the Human Rights Committee called for the exercise of “due diligence to prevent, punish, investigate or redress the harm caused by [violations] by private persons or entities”.Footnote 66 In 2017, the Committee on Economic, Social and Cultural Rights (CESCR) noted that there is a duty for States to “adopt a legal framework requiring business entities to exercise human rights due diligence in order to identify, prevent and mitigate the risks of violations of Covenant rights”.Footnote 67 In addition, the CESCR expands on extraterritorial obligations in its General Comment and notes that States have an obligation to take “steps to prevent and redress infringements of Covenant rights that occur outside their territories due to the activities of business entities over which they can exercise control”.Footnote 68 Duvic-Paoli notes that while “a general extraterritorial obligation of prevention under human rights law has not yet consolidated”, there is “good support for the obligation both in the scholarship and in practice”.Footnote 69
In 2017, the Inter-American Court of Human Rights (IACtHR) issued an Advisory Opinion calling for activities to minimize risks to the environment and human rights, including through environmental impact studies, licensing, and supervision. In the Advisory Opinion, the Court stated:
Most environmental obligations are based on this duty of due diligence. The Court reiterates that an adequate protection of the environment is essential for human well-being, and also for the enjoyment of numerous human rights, particularly the rights to life, personal integrity and health, as well as the right to a healthy environment itself.Footnote 70
The standard of due diligence is also referenced as an obligation of conduct that requires “appropriate measures”.Footnote 71 The formulation “appropriate measures” was re-emphasized in the Court's decision in Lhaka Honhat v. Argentina, which also stated that due diligence must be proportionate to the level of risk of environmental harm.Footnote 72
In a 2022 report to the UN General Assembly, the UN Special Rapporteur on Human Rights and the Environment called upon States to “enact legislation requiring businesses that contribute to climate change, biodiversity loss, pollution and other forms of environmental degradation to conduct inclusive and rigorous human rights and environmental due diligence”,Footnote 73 and noted that such regulation should cover the full supply chain.Footnote 74 In a dedicated policy brief on human rights and environmental due diligence legislation, the Special Rapporteur emphasized the possibility for robust due diligence regulations to prevent human rights and environmental harms, while also noting that existing regulations are frequently “fraught with inconsistencies, ambiguities, exemptions and other weaknesses that prevent them from adequately responding to the often-overlapping human rights and environmental abuses that are plaguing rightsholders and ecosystems worldwide”.Footnote 75 The brief defines “vulnerable rightsholders” as including “protected populations under occupation or in conflict-affected areas”.Footnote 76
A tendency towards integration: Human rights and environmental due diligence
Recent years have seen an increase in national and regional standards and regulations on human rights and environmental due diligence, such as in France, Germany and the EU.Footnote 77 In addition, there has been a tendency to “harden” due diligence norms regarding human rights abuses and environmental impacts from voluntary standards to binding regulations.Footnote 78
The UN Working Group on Business and Human Rights has emphasized in its report on due diligence that the practice of human rights due diligence has “moved beyond the niche realm of socially responsible investors to become part of a wider trend of greater focus on managing the social impact of business and integrating environmental, social and governance considerations into mainstream investment decision-making”.Footnote 79 This integrative approach was also highlighted in a study on due diligence requirements through the supply chain developed for the European Commission, which noted that the
evolution and the insertion of human rights due diligence, beyond the requirements for business of [human rights impact assessments] as a onetime activity, have environmental implications. Firstly, because the right to a healthy environment is recognized as a human right, and secondly because the enjoyment of many other human rights requires a healthy environment.Footnote 80
Nonetheless, commentators have also highlighted potential risks. For instance, without “well-targeted and appropriate legislation, there is a risk that a ‘tick-box’ approach will occur so that existing corporate practices may continue”.Footnote 81 In addition, “transplanting” or integrating a concept from one area of the law to another runs the risk that its application becomes decontextualized and/or ahistorical.Footnote 82
Human rights and environmental due diligence in relation to armed conflicts: Comparing the ILC Principles with the EU Conflict Minerals Regulation
The EU Conflict Minerals Regulation
The EU CMR was developed to address linkages between conflict and human rights abuses and the sourcing of tin, tantalum, tungsten and gold (3TG).Footnote 83 One of the stated aims of the regulation was to complement the Dodd-Frank Act in the United States,Footnote 84 which also focuses on 3TG. The regulation entered into force on 1 January 2021.
Article 2(d) of the EU CMR states that
“supply chain due diligence” means the obligations of Union importers of tin, tantalum and tungsten, their ores, and gold in relation to their management systems, risk management, independent third-party audits and disclosure of information with a view to identifying and addressing actual and potential risks linked to conflict-affected and high-risk areas to prevent or mitigate adverse impacts associated with their sourcing activities.
The phrase “conflict-affected and high-risk areas” is further defined in Article 2(f) as “areas in a state of armed conflict or fragile post-conflict as well as areas witnessing weak or non-existent governance and security, such as failed states, and widespread and systematic violations of international law, including human rights abuses”.
Drawing on the OECD Due Diligence Guidance for Responsible Supply Chain of Minerals from Conflict-Affected Areas (OECD Guidance), the EU CMR outlines a five-step process of due diligence, requiring importers to (1) establish management systems, (2) identify and assess the risk of adverse impacts in the supply chain, (3) develop and implement a strategy to respond to identified risks, (4) carry out independent third-party audits, and (5) report on supply chain due diligence annually.Footnote 85 As noted by several commentators, this approach is similar to that outlined in the UNGPs, and integrated in the OECD Guidance.Footnote 86 The geographic scope covers potentially all countries linked to EU importers, which is broader than the Dodd-Frank Act's focus on the Democratic Republic of the Congo and neighbouring countries.Footnote 87
While welcomed as a step towards greater transparency and implementation of the UNGPs,Footnote 88 the EU CMR has been critiqued on several accounts. For instance, it has been noted that the development and implementation of the regulation does not require consulting “individuals within the countries concerned directly impacted by it”.Footnote 89 In addition, the focus on 3TG limits the application of the regulation,Footnote 90 with the concern that this might have implications for the aim of establishing a “level playing field” with other sectors,Footnote 91 and that such an approach will “fail to prevent or address adverse impacts which take place outside of this sector”.Footnote 92 In addition, several commentators have highlighted the limitation that the regulation does not apply to downstream corporations directly,Footnote 93 and the weak system of enforcement,Footnote 94 leading to limited accountability and access to justice for those affected by corporate malpractice across the supply chain. While increased transparency requirements are important, accountability does not necessarily follow from such regulation.Footnote 95 Revised standards on greater access to justice, through e.g. legal aid and shifting the burden of proof, could serve as pathways to addressing procedural hurdles and contributing to the effective enjoyment of the right to healthy environment.Footnote 96
In general, the EU CMR can be seen as a “partial response” to address abuses across the supply chain.Footnote 97 The regulation focuses on certain “choke points” or “control points” in the supply chain through which most materials pass and which are thus considered to be “best placed to track the materials” concerned.Footnote 98
The OECD Guidance refers to the OECD Guidelines for Multinational Enterprises (MNE Guidelines) as a relevant instrument for assessing supply chain risks.Footnote 99 In 2020–22, the OECD undertook a stocktake of the MNE Guidelines, which identified the need for further detail on the “scope of environmental impacts to be addressed and the interconnections between the human rights and environmental chapters, including reference to the right to a healthy environment” as well as “further clarity on obligations relating to climate due diligence in particular and how this intersects with human rights due diligence”.Footnote 100 Thus, it is possible that the continuous updating of OECD standards and their implementation will contribute to a further alignment of the due diligence requirements in the OECD Guidance and associated regulations with the right to a healthy environment.Footnote 101
The ILC Principles on Protection of the Environment in Relation to Armed Conflicts
Prompted in part by the recommendations of an expert seminar and subsequent report by the International Committee of the Red Cross (ICRC) and UN Environment Programme (UNEP),Footnote 102 the topic “Protection of the Environment in Relation to Armed Conflicts” was included in the long-term programme of work of the ILC in 2011,Footnote 103 and was included in the current programme of work at the 65th session in 2013.Footnote 104 In 2022, a set of Draft Principles was adopted by the Commission,Footnote 105 and later taken note of by UN General Assembly Resolution 77/104, which encouraged their widest possible dissemination.Footnote 106 The ILC commentary to Draft Principle 10 notes that the Principle has been phrased as a recommendation,Footnote 107 and that “due diligence by business enterprises” refers to a “wide network of frameworks” which include “nonbinding guidelines as well as binding regulations at the national or regional level”.Footnote 108 The preamble of General Assembly Resolution 77/104 also notes that the Principles provide recommendations for the progressive development of international law “to the extent that they do not reflect customary or treaty-based obligations of States, as applicable”.Footnote 109
The Principles are structured in accordance with general temporal phases (before, during and after armed conflicts) and include two provisions specifically focusing on business: Principle 10 on due diligence and Principle 11 on corporate liability.
The general importance of Principles 10 and 11 has been highlighted by several authors, with Wolters and Dam-de Jong noting that their inclusion in the (then-Draft) Principles is “highly significant, not in the least because of the involvement of corporations in the illicit exploitation of natural resources financing armed conflicts, which is a prevalent cause of environmental harm in contemporary armed conflicts”.Footnote 110 It has also been suggested that the Principles overall add “an international legal dimension to what some may consider to be existing ethical responsibilities”.Footnote 111 This aligns with the general tendency of a “hardening” of soft law and standards regarding corporate conduct and the shift from voluntary standards like the OECD Guidance to binding measures such as the EU CMR and the proposed EU Corporate Sustainability Due Diligence Directive.Footnote 112
Principle 10 on “Due Diligence by Business Enterprises” reads:
States should take appropriate measures aimed at ensuring that business enterprises operating in or from their territories, or territories under their jurisdiction, exercise due diligence with respect to the protection of the environment, including in relation to human health, when acting in an area affected by an armed conflict. Such measures include those aimed at ensuring that natural resources are purchased or otherwise obtained in an environmentally sustainable manner.
During the discussions at the ILC and in submissions from States and observers, the reference to “human health” was considered at length.Footnote 113 For instance, submissions by civil society and the International Union for Conservation of Nature (IUCN) called for revising the reference.Footnote 114 The commentary underlines “the close link between environmental degradation and human health as affirmed by international environmental instruments, regional treaties and case law”, and refers to the “broad recognition of the right to a safe, clean, healthy and sustainable environment both at the national and international levels”.Footnote 115 The fact that the commentary to Draft Principle 10 explicitly refers to the right to a healthy environment is significant since ILC commentaries are “crucial for the identification and interpretation of rules”Footnote 116 and have been treated as “supplementary means of treaty interpretation” and as “the context in which draft provisions are to be interpreted”.Footnote 117
The reference to the importance of the environment for the enjoyment of human rights in the preamble further underscores this close link between the environment and human rights as part of the context against which the Principles should be interpreted.Footnote 118 The ILC Special Rapporteur also referred to international human rights law as the legal foundation for Principle 10.Footnote 119
Comparison between the ILC Principles and the EU Conflict Minerals Regulation
There are a number of similarities and differences between the ILC Principles and the EU CMR. The ILC Principles contribute to extending extraterritorial application to obligations under international law. In her 2022 report, Special Rapporteur Marja Lehto states that as the phrase “operating in or from their territories” has been “interpreted in the OECD practice to cover both territory and jurisdiction”, it should also be understood in this manner as part of the ILC Principles.Footnote 120 The commentary to Draft Principle 10 also states that “the phrase [operating in or from their territories] may be interpreted to cover both territory and jurisdiction”.Footnote 121 Wolters and Dam-de Jong note in their analysis of the 2019 version of the Draft Principles and commentaries that “with the proposal of Draft Principle 10, the trend of extending obligations extraterritorially is further recognized and the concept is strengthened”.Footnote 122 This extension is important to avoid, for instance, businesses adopting “policies domestically for subsidiaries to carry out activities abroad that will violate environmental rights in conflict zones”.Footnote 123
The EU CMR has been identified as increasing “the number of EU trade rules with extraterritorial reach aimed at pursuing public values (such as the protection of the environment or internationally recognised human rights) outside the EU”.Footnote 124 As noted above, the regulation draws on similar materials to the ILC Principles, including the OECD Guidance, which has been considered to have extraterritorial reach given that due diligence should be undertaken throughout the global supply chain.Footnote 125
Historically, international environmental law has integrated extraterritorial effects to a greater extent than international human rights law.Footnote 126 Dienelt, writing on armed conflicts and the environment, refers to the different approaches as extraterritorial application (of international human rights law) and extraterritorial effects (of international environmental law) and notes that these complement each other.Footnote 127 It could be argued that the integration and strengthened linkages between human rights law and international environmental law, including through human rights and environmental due diligence and the right to a healthy environment, may serve as a pathway for further extraterritorial obligations. It is interesting in this context that the Advisory Opinion before the IACtHR which clearly expressed the extraterritorial scope of due diligence obligations had as its material focus the question on human rights and the environment.Footnote 128 From a genealogical perspective, some of the formative documents which have contributed to the development and understanding of the right to a healthy environment have also informed the emerging concept and application of human rights and environmental due diligence. This includes, for instance, the 2017 General Comment by the CESCR.Footnote 129
ILC Principle 10 calls for “appropriate measures” to ensure that due diligence standards are met, and the OECD Guidance providing the inspiration for the EU CMR refers to “appropriate” due diligence measures.Footnote 130 “Appropriate measures” is also the requirement of the IACtHR 2017 Advisory Opinion, which links the due diligence standard with the right to a healthy environment. Such measures must have a specific aim (in the case of Principle 10, being aimed at ensuring due diligence) while still allowing for flexibility as regards the specific form chosen (e.g. legislative, judicial or administrative measures).Footnote 131
In terms of the scope of the two standards, the EU CMR is more limited as it applies to EU importers of 3TG. The ILC Principles apply to all States and all businesses regardless of sector; the HRC and General Assembly resolutions recognizing the right to a healthy environment both refer to all businesses. Moreover, stakeholders “have confirmed that there is no sector of business which does not pose any potential risks to human rights or the environment”.Footnote 132 The limited scope of the EU CMR is also problematic considering the demand for non-3TG minerals such as cobalt as part of the transition to renewable energy, with multiple reports of violations of human rights and environmental standards by actors in this sector in conflict-affected areas.Footnote 133
While this tendency towards a more integrative way of viewing human rights and environmental protection is promising, it is important to recall that human rights and environmental due diligence is not a panacea to remedy environmental injustice or address harm to the environment and human rights, just as the right to a healthy environment is not. Whereas this article has sought to provide elements for an improved understanding of due diligence and enhanced due diligence in light of the right to a healthy environment, it will be critical to continuously improve understanding of due diligence and requirements for enhanced due diligence in the implementation of standards such as the EU CMR and the ILC Principles, and in the adoption of norms under development such as the EU Corporate Sustainability Due Diligence Directive.Footnote 134
Conclusion
As noted above, both the HRC and General Assembly resolutions recognizing the right to a healthy environment refer to the role of businesses. In the 2018 Framework Principles developed by the UN Special Rapporteur on Human Rights and the Environment, Principle 12 states that “States should ensure the effective enforcement of their environmental standards against public and private actors”, noting in the associated commentary that “States must regulate business enterprises to protect against human rights abuses resulting from environmental harm and to provide remedies for such abuses”.Footnote 135
Elements of the right to a healthy environment are present in both the EU CMR and in the OECD Guidance which provided the inspiration for that regulation, and in the ILC Principles – even to the extent that the General Assembly and HRC resolutions, as well as national and regional developments on the right to a healthy environment, are mentioned in the commentary to Draft Principle 10.Footnote 136 A number of States and international organizations also welcomed the references to the right to healthy environment in the ILC Principles and their associated commentary during the plenary discussions in the Sixth Committee of the General Assembly.Footnote 137
In particular, the procedural dimensions of the right to a healthy environment provide a strong link to due diligence requirements.Footnote 138 In fact, and building on an argument developed by Viñuales, the degree of due diligence could be informed by the right to a healthy environment – including its substantive components – as another “relevant norm” applicable between the parties under the principle of systemic integration in the Vienna Convention on the Law of Treaties.Footnote 139 This could for instance mean that since the right to a healthy environment includes as one constitutive element access to justice in environmental matters, due diligence criteria should be developed and interpreted to ensure stronger access to remedy and ensure coherence with the right to a healthy environment more broadly.
As noted by several commentators, the right to a healthy environment remains an open and evolving norm.Footnote 140 In a similar manner, the requirements for due diligence retain a certain level of flexibility in order to remain dynamic while still meeting an appropriate level of stability and foreseeability. This balance and need for legal certainty also requires integration and coherence.Footnote 141 A more integrated understanding of human rights and the environment, as exemplified both by the right to a healthy environment and combined human rights and environmental due diligence, could also address the risk of conflicts between these areas – for instance, the risk that environmental protection measures may contribute to human rights violations, or that actions developed to safeguard human interests may harm the environment.Footnote 142 In particular, integrated due diligence and the right to a healthy environment can both contribute to a greater focus on prevention in international human rights law in addition to ensuring remedies for past harms.Footnote 143
This article has outlined how the EU CMR and the ILC Principles are both part of a tendency towards integrated human rights and environmental due diligence. This trend speaks to a stronger emphasis on the linkages between human rights and the environment overall and provides a fertile ground for implementation of the right to a healthy environment itself. It is significant in this context that the HRC resolution recognizing the right to a healthy environment affirms that its promotion “requires the full implementation of the multilateral environmental agreements under the principles of international environmental law”.Footnote 144 The integrative approach has also been emphasized by George in her analysis of the UNGPs, and by the UN Working Group on Business and Human Rights in their report focusing on coherence.Footnote 145
Both the EU CMR and the ILC Principles open the possibility of extraterritorial application of their respective standards. This tendency is in line with the recognition of a universal human right to a healthy environment generally, as referenced above. Recent guidance developed by UNDP, UNEP and the Office of the UN High Commissioner for Human Rights (UN Human Rights) on the right to a healthy environment also states that realizing the right “requires … recognition of extraterritorial jurisdiction over human rights harms caused by environmental degradation”.Footnote 146
ILC Principle 10, the EU CMR and the normative developments regarding the right to a healthy environment can also be seen as part of the tendency of making soft law binding. For instance, the UNGPs and OECD Guidance are used as references and sources of terms for the EU CMR. The commentary to the ILC Principles also points to the OECD Guidance and the UNGPs for understanding and interpretation of due diligence requirements. The ILC commentary formulation that Draft Principle 10 has been phrased as a recommendation forms part of the Commission's mandate to codify and progressively develop international law.Footnote 147 While several States noted during their explanation of vote at the General Assembly that the resolution recognizing the right to a healthy environment in and of itself did not represent a binding commitment, the resolution nonetheless demonstrates the evolving norm as evidenced by its expression in recent treaties such as the 2018 Escazú Agreement,Footnote 148 in declarations and resolutions including at the UN Environment Assembly,Footnote 149 at the Council of EuropeFootnote 150 and in constitutional provisions at the national level.
Finally, both human rights and environmental due diligence and the right to a healthy environment could be seen as part of a proceduralization of international law.Footnote 151 Specifically, a proceduralization of due diligence obligations could serve as a way to “increase legal certainty and overcome the ambiguity surrounding reasonableness”.Footnote 152 This is particularly significant in situations of armed conflict, given the lack of regulatory oversight and enhanced risk of human rights violations and harm to the environment in such situations. One of the main contributions of the right to a healthy environment in this context could be strengthening effective procedural rights in the area of environmental protection and bridging procedural and substantive rights.Footnote 153 It remains to be seen whether the proceduralization of international law will continue and, if so, if it can pave the way for more empowered engagement on environmental protection and human rights.Footnote 154
While this article has sought to analyze and compare due diligence requirements in the ILC Principles and the EU CMR and suggest pathways for enhanced due diligence aligned with the right to a healthy environment, further research is needed, including on the terms “impacts” and “risks”, and to better understand the development, requirements and implementation of enhanced human rights and environmental due diligence in conflict-affected contexts.Footnote 155 A greater understanding of human rights and environmental due diligence is particularly critical considering the regulations currently under development by actors such as the EU.
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