The Business and Human Rights debate
Posted: Tue Feb 18, 2025 5:20 am
The AO does not address climate change, but some of the Court’s observations on States’ duties (see especially § 242) are clearly pertinent to this ultimate example of transboundary pollution. Moreover, the Court’s reasoning on the “jurisdiction” issue could be used to support an argument that a State’s contribution to the accumulation of greenhouse gases in the atmosphere should result in State responsibility and accountability under the ACHR to victims living in other States, e.g. persons whose lands have become submerged or uncultivable due to rising sea levels. Any such claim would of course be politically controversial, and would also face formidable obstacles regarding proof of causation. Arguably, it might also be preempted by the access to national remedies, especially if tort lawsuits based on climate change prove to be viable (the world is of course watching Lluiya v. RWE in the German courts for a signal), or by the existence of alternative mechanisms for compensating the victims’ State, such as the Warsaw International Mechanism under the UNFCCC. Nonetheless, it is striking that the IACtHR’s ruling is that States can (depending on the precise circumstances and a sufficient causal link) be accountable for the emission of pollutants from activities in their territory which cause transboundary ecological harm. Whereas in 2005, the IAComHR decided against accepting a petition by Inuit peoples that climate change was violating their ACHR rights, in the light of the AO, the arguments of the Inuit (and other vulnerable groups for whom climate change has become an existential threat to their lands, livelihoods and cultures) benefit from an enhanced weight of principle and authority.
The AO also helps to draw attention to an under-emphasized aspect of current debates about regulating multinational corporations to protect human rights. These debates have tended to focus on (1) the responsibility of States to protect persons within their own territory (Principle 1 of the 2011 UN Guiding Principles on Business and Human Rights), and (2) the question whether States can, should, or must regulate extraterritorially to control what corporations domiciled in their territory do overseas. The latter issue is band database referred to in Principle 2, with the current lex lata apparently being that States can but need not so regulate: moves in the U.N. Human Rights Council since 2014 to elaborate a binding treaty has so far only won support in the global South, which portends continuing statemate. In this situation, we should not lose sight of a third dimension, which does not feature prominently in the UN Guiding Principles: whether under existing international legal instruments such as human rights treaties, States may already be obliged to regulate domestically with a view to controlling overseas impacts? This is likely to be especially necessary in cases where the impacted State is not realistically able to block the adverse transboundary effects of the activity, either through lack of capacity or because the inherent nature of the consequences flowing from the activities makes it impracticable. In the latter category could be included cases of environmental harm, such as cross-border pollution, accidents involving hazardous substances, and unsustainable fishing; but also non-environmental harms such as (potentially) deaths in one State that are traceable to another State’s toleration of the activities of extremist groups or of terrorist financing.
The AO also helps to draw attention to an under-emphasized aspect of current debates about regulating multinational corporations to protect human rights. These debates have tended to focus on (1) the responsibility of States to protect persons within their own territory (Principle 1 of the 2011 UN Guiding Principles on Business and Human Rights), and (2) the question whether States can, should, or must regulate extraterritorially to control what corporations domiciled in their territory do overseas. The latter issue is band database referred to in Principle 2, with the current lex lata apparently being that States can but need not so regulate: moves in the U.N. Human Rights Council since 2014 to elaborate a binding treaty has so far only won support in the global South, which portends continuing statemate. In this situation, we should not lose sight of a third dimension, which does not feature prominently in the UN Guiding Principles: whether under existing international legal instruments such as human rights treaties, States may already be obliged to regulate domestically with a view to controlling overseas impacts? This is likely to be especially necessary in cases where the impacted State is not realistically able to block the adverse transboundary effects of the activity, either through lack of capacity or because the inherent nature of the consequences flowing from the activities makes it impracticable. In the latter category could be included cases of environmental harm, such as cross-border pollution, accidents involving hazardous substances, and unsustainable fishing; but also non-environmental harms such as (potentially) deaths in one State that are traceable to another State’s toleration of the activities of extremist groups or of terrorist financing.