Towards a Business, Human Rights and the Environment Framework

1. Introduction

We are in the midst of an ecological crisis which has been and continues to be provoked by human-led ‘environmental degradation’ (defined for the purposes of this editorial as any harm or adverse impact caused to the environment, including climate change, the contamination of the land and water through the exposure to or dumping of toxic and hazardous substances and wastes, air pollution, the destruction of ecosystems, and the depletion of biodiversity). Despite this, and the fact that such degradation is directly linked to adverse impacts on biological diversity, ecosystems, and human life [1] (paras 36–38) [2] (pp. 3–4), states persist in providing inadequate responses to the destruction of nature, including in the context of establishing strong regulatory frameworks to address harmful corporate activity. It is this collective failure to take effective steps in addressing environmental degradation which continues to make human activities a threat to the natural world with potentially irreversible impacts [3] (p. 28) [4] (pp. 5–8). Humanity has received its “code red” warning [5]: we are at risk of exceeding 1.5 °C unless deep reductions in greenhouse gas (GHG) emissions are made within the following decades [3] (p. 17). The degradation of the environment, rise in temperatures, and climate change have already impacted human health and livelihoods, which will only get worse, potentially becoming an existential threat.

Academics, lawyers, and civil society actors have sought to explore solutions to tackling environmental degradation through the lens of human rights. As such, the growing recognition of the close relationship between the environment and human rights has led to the appointment of a Special Rapporteur on Human Rights and the Environment [6,7], the inclusion of targets that seek to address our adverse impact on the environment throughout the Sustainable Development Goals [8], and recently to the recognition by the United Nations Human Rights Council (HRC) that a clean, healthy, and sustainable environment is a human right in of itself, in its landmark resolution 48/13 in October 2021 [9].

Despite this recognition, the well-established impact of the private sector on both human rights [10] and the environment [11] (paras 32–34) [12,13] (para 81), and the consolidation of a corporate responsibility to respect human rights under International Human Rights Law as clarified within the UN Guiding Principles on Business and Human Rights (UNGPs) [14] (Principles 11–24), there has been limited consideration given to the environment in the business and human rights (BHR) discourse. Increasingly, regulatory developments have made efforts to integrate environmental rights into the protection of human rights from corporate harm, for example, the draft treaty or International Legally Binding Instrument (LBI) to regulate, under international human rights law, the activities of transnational corporations and other business enterprises [15]. Moreover, environmental considerations are starting to make their way into non-financial reporting and human rights due diligence processes along with a range of climate change-related litigation which consider the human cost of both corporate action and state inaction. However, the consideration of the environment in the BHR legal field has at its best been approached in an ad-hoc and piecemeal manner, resulting in efforts that fail to adequately consider the interaction between international human rights law and international environmental law as two separate legal regimes and their practical implementations in relation to commercial activities.

From this perspective, how do we articulate a comprehensive theoretical framework which seeks to protect both human rights and the environment from corporate abuses? This question sits at the heart of this Special Issue of Sustainability on Business, Human Rights, and the Environment. In an attempt to provide a response, this Special Issue seeks to reflect on the current, albeit limited, theoretical and practical integration of human rights and the environment into the BHR framework to date. The scholars who have contributed to this Special Issue bring a wide range of expertise and perspectives from various regions to facilitate this reflection and incorporation of human rights and the environment into the BHR discourse to inform theory and practice. In addition to reflecting on the evolution of the relationship and current practice, they also explore the role and potential impact that a greater integration of the environment into the BHR framework has in achieving positive social and environmental change as well as the protection, fulfilment, and promotion of human rights.

This Editorial seeks to set the stage for the contributions discussed above by: (1) laying out the relationship between human rights and the environment under International Human Rights Law, including both the synergies and contradictions brought by the different principles, natures, scopes, and duty-bearers in both regimes; (2) mapping when and where environmental concerns began to be considered in the corporate responsibility and BHR discourse and the prominence of climate change as a BHR issue; (3) considering the extent to which developing transparency standards, due diligence standards, and climate litigation has articulated human rights and environmental accountability for corporate-induced harm in the absence of a business, human rights, and environment (BHRE) framework. In these discussions, we identify and draw links between the key perspectives explored in the seven contributions which ought to be taken forward in any development of an integrated and coherent theoretical BHRE framework and its international legal implementation.

2. Human Rights and the Environment: Synergies and Conflicts in the Business and Human Rights Context

The first time that the link between human rights and the environment was expressed at the international level was in Resolution 2398 (XXIII) [16], and then consequently in the Stockholm Declaration [17] (Preamble and Principle 1) and the Rio Declaration [18] (Principle 1). The literature has been building a theoretical approach to these interactions ever since [19,20]. The existence of a relationship between human rights and the environment has become indisputable, and as such has been recognised at the international legal level [21] (p. 296). Environmental degradation has a significant impact on the realisation and enjoyment of human rights. For example, at the atmospheric level, this degradation takes the form of air pollution, ozone-layer depletion, and climate change, the latter of which has been identified as the primary factor in driving many local communities across the globe toward circumstances that facilitate violations to their human dignity and rights, including vulnerability to labour exploitation and human trafficking [22,23] (paras 15–22).

The existence of a relationship between the environment and internationally recognised human rights owes itself to the acknowledgement that the environment is a precondition to the enjoyment of human rights [23] (paras 7, 15–22) [24] (para 62), and that human rights are tools through which environmental issues (both procedural and substantive) can be addressed [23] (para 8) [25] (paras 25–33). The environment and human rights are inextricably linked to and interdependent on one another; a safe, clean, healthy, and sustainable environment is crucial for the full enjoyment of all human rights, and consequently the exercise of human rights without interference is essential for the protection of the environment [26,27] (para 148). Both human rights and environmental concerns are key to achieving sustainable development and in efforts working towards a just transition [8] (Goals 2, 7, 12, 13, 14, 15) [18] (Principle 4) [23] (para 9) [25] (para 9).

However, this indisputable dynamic between human rights and the environment encounters a conflict when operationalised both legally and in practice. As they have developed, the two main international regimes at the basis of the regulatory framework of activities, which impact both human rights and the environment, International Human Rights Law, and International Environmental Law, do not facilitate the fulfilment of the necessary synergies. On the contrary, the nature, scope, and subjects of the obligations in both legal regimes are different, and on occasion results in obligations and rights that are implemented in opposition to each other, depending on the applicable norm. The following sections explore these arguments, especially as they apply to the BHR context, through: (1) the nature, scope, and bearers of human rights and environmental obligations; (2) the adoption of a new right to an environment, framed in terms of its health, safety, cleanliness and sustainability [25] (para 11).

2.1. Principles, Duty Bearers, Nature and Scope of Obligations

Whilst a significant number of obligations and responsibilities that are applicable to the environmental context find their basis in several civil, political, economic, social, and cultural rights [28] (paras 30–35), the nature and scope of the obligations as well as the identification of specific duty-bearers are laid out in two separate legal systems. As Stephen Turner eloquently demonstrates in his contribution to this Special Issue Business, Human Rights and the Environment—Using Macro Legal Analysis to Develop a Legal Framework That Coherently Addresses the Root Causes of Corporate Human Rights Violations and Environmental Degradation, [29] international human rights law and international environmental law are two different branches of law, and as such they ‘do not necessarily achieve their objectives or operate effectively to modify corporate decision making [29] (p. 4)’. This derives from their separate development for historical and technical reasons [19], and from these different starting points, ‘it is understandable that human rights law and environmental law have developed along different trajectories and have ultimately resulted in different institutions and seemingly different priorities [29] (p. 5)’. Turner goes on to argue that these have evolved as distinct branches of the law, thus reflecting the different fundamental principles which underlie them as legal systems. International human rights law, which pre-dates the development of international environmental law, is based on the principles of dignity, equality, and liberty, underpinned by notions of solidarity. As Bantekas and Oette put it: ‘at the core of human rights lie fundamental questions about the nature of human beings and their relationship with each other as members of society, including ‘international society’ [30] (p. 6). International environmental law, on the contrary, is underpinned by principles such as precaution, prevention, the polluter pays principle, and intergenerational equity, which are concerned with regulating and minimising the extent of environmental harm (to other states or areas beyond national jurisdiction such as the global commons) caused by states [29] (p. 5) [31] (pp. 263–264).

However, not only are the underpinning principles different for these two legal systems, so are the right-holders and duty-bearers. The majority of the rights recognised in international human rights treaties are conceptualised as individual rights. This derives from ‘the notion that human beings have rights by virtue of their humanity, which is traditionally understood to apply to individuals only’ [30] (p. 73) [32] (paras 1, 3). Duty-bearers in international human rights law are mostly states, and whilst much debate was dedicated to the potential of non-state actors, specifically corporations, to be recognised as having international legal personality [33] or direct human rights duties [33,34] in the early days of BHR scholarly developments, it is still sparsely disputed that there is not much room for a multiplicity of duty-bearers beyond the individual when the violations amount to international crimes. Whilst the duty-bearers in international environmental law are also states, right-holders are not individuals, but other states. International environmental treaties establish obligations between state parties in the context of environmental conduct, and these obligations are largely preventative (as can be seen by the principles underpinning this field of law) and do not necessarily create enforceable rights for individuals, even where individuals have been impacted by environmental harm falling within the scope of international environmental treaties. Beyond international human rights law which has begun to address this gap by applying human rights to environmental contexts, there is growing consideration for qualifying other non-human entities as right-holders, such as nature [35]. Over the past 15 years there has been a substantial increase in the endowment of legal rights on natural entities such as rivers, ecosystems, or specific species under the umbrella of the ‘rights of nature’ across various jurisdictions [36] (p. 206). This approach generally involves the endowment of legal personhood and rights to natural entities, and the allocation of authority to individuals and communities to advocate for and seek remedies on behalf of nature to ensure these rights are upheld [37] (Articles 10, 71–74). For example, in 2016, the Constitutional Court of Colombia declared that the Atrato River (which was threatened by unlawful mining, deforestation, contamination, and was integral to the biocultural rights of the indigenous peoples and local communities within the region) was a legal subject and consequently entitled to protection, conservation, and maintenance [38] (p. 522) [39] (p. 10). Furthermore, the Court conferred on the state entities procedural orders regarding the “…formulation of public policies to protect the rights of the river as well as an interinstitutional monitoring mechanism to follow up on their implementation [39] (p. 10)”. Similarly, in 2018 the Supreme Court of Colombia recognised the Colombian Amazon as a legal subject endowed with rights and conferred to the national and local governments an obligation to protect, conserve, maintain, and restore the Amazon River [40,41] (p. 9). In both cases, the Court decision to confer legal personhood onto the rivers and confer obligations to the state entities to protect, maintain, and conserve the rivers, were both based on an assessment of human rights and environmental obligations. Whilst an extensive discussion of these developments is beyond the scope of this editorial, the emerging recognition of the rights of nature across various jurisdictions seems to not only underscore the relationship between human rights and the environment but also seems to challenge the ’universal’ conceptualisation of the environment as a commodity for human use which is common to international law [42] (pp. 423–425), and this has significant implications for addressing environmental and human rights impacts, including those arising from corporate activities.

The distinction between the two legal systems is also evident in the nature of states’ obligations. States have the duty to respect, protect, and fulfil international human rights, a duty which is both procedural and substantive in nature. Not only does this duty require refrainment from interfering with rights (respect), but it also requires that states prevent any interference with rights from their own and third-party actors (protect), and the adoption of measures such as legislation, regulations/policies, and the provision of resources to facilitate right-holders’ access and enjoyment of rights in practice (fulfil). A state’s obligations under International Environmental Law are also substantive and procedural in nature. These are defined in the context of specific principles and spatial areas of environmental protection (such as the oceans, atmosphere, etc.,) in the former (substantive obligations), and the specific procedures that states must have in place to facilitate the protection of the environment in the latter (procedural obligations). Finally, the scope of the obligations is also different. Whilst there is a strong resistance in international law to recognise the extraterritorial reach of human rights obligations [34,43,44], International Environmental Law has developed on the basis that environmental harm knows no borders [31] (p. 4).

As a result of these fundamental differences in the underpinning principles of duty-bearers and right-holders, and in the nature and scope of obligations, we concur with Turner when he argues, ‘where the operations of businesses have negative impacts on both human rights and the environment, human rights and environmental lawyers will inevitably use different bases through which to evaluate the issues [29] (p. 5)’. Thus, developing a coherent language when considering the broad topic of corporate responsibility for human rights and the environment is a challenge. The next section explores how both procedural and substantive environmental obligations interact with international human rights.

2.2. International Environmental and Human Rights Obligations in the Business and Human Rights Context

The procedural environmental obligations of states consist of duties to assess environmental impacts and make such environmental information publicly available, to facilitate public participation in environmental decision-making, and to provide access to remedies for environmental harm [28] (para 29). In addition to being drawn from several human rights, the fulfilment of these duties are also crucial to guaranteeing for all individuals and communities the full enjoyment and exercise of their substantive rights. For example, it would be extremely difficult for individuals and communities to participate in environmental decision-making processes (that may affect their substantive rights) and for victims of environmental human rights impacts to seek redress without access to environmental information such as environmental impact assessments. The recognition of this difficulty has culminated in a range of regional agreements seeking to guarantee access to information in environmental contexts [45,46], along with ongoing efforts in a range of communities in low- and middle-income countries with the support of civil society seeking to respond to the lack of information and access to formal environmental impact assessments. As a part of these duties, states must also provide education and public awareness on environmental matters, both of which are prerequisites to understanding environmental information and thus fully exercising one’s right to express their views on environmental issues, participate in decision-making, and seek remedies for violations of their rights [26] (Principle 6, Commentary paras 15–16).

The corporate responsibility to respect human rights also has procedural dimensions in the environmental context. This is apparent in the context of businesses’ due diligence processes and the provision of remedies for environmental human rights harm. For example, the adoption of a due diligence process ensures that businesses can identify, prevent, mitigate, and account for how they address their human rights and environmental impacts [14] (Principle 17–21). Therefore, just like states, businesses must also ensure that they assess their environmental and human impacts. As a part of their due diligence, businesses must also communicate how they identify and address their human rights and environmental impacts [14] (Principle 21). This is particularly important, as noted above, because individuals and communities face significant challenges to their participation in environmental decision-making or even seeking redress for environmental human rights impacts without access to such information.

States’ substantive obligations are drawn from the general obligation under international human rights law to protect the human rights of those within their territory or jurisdiction from any interference which threatens or infringes their enjoyment of a right. This general obligation includes protecting against interferences with rights from environmental harm, which would consequently give rise to the state obligation to adopt and implement legal frameworks to protect against environmental harm [24] (para 26) [28] (paras 44–46). The implementation of frameworks to protect from environmental harm should be applicable to regulating state actors as well as non-state actors such as corporations, as has been established under international human rights law [28] (para 58) [47] (para 14). This would involve the utilisation of both international environmental and international human rights standards in the adoption and implementation of such frameworks, so that states can ensure that human rights and environmental impacts (including those arising from corporate activities) are adequately addressed in an integrated manner, rather than in isolation from each other [26] (Principle 12, Commentary para 34) [24] (para 62).

Considering the discussion above, businesses’ substantive responsibilities would therefore not differ from those established under the corporate responsibility to respect human rights in the BHR framework and could simply be applied to the environmental context. This would mean that businesses should comply with environmental laws, by adopting policy commitments to meet their responsibility to respect human rights through environmental protection, implementing human rights due diligence processes regarding their environmental impacts on human rights, and enabling the remediation of the environmental and human rights abuses that they cause or contribute to [26] (Principle 12, Commentary para 35).

Certain people face a heightened threat to their human rights which is also reflected in the impact that environmental harm has on them and their livelihoods. This has given rise to a category of state obligations that give due consideration to the situations of such persons that suffer disproportionate impacts in the discharge of states’ duties under international human rights law. State obligations to persons in vulnerable situations arise out of the recognition that despite a general obligation to non-discrimination [28] (para 69) [48] (para 81) in the discharge of state duties under international human rights law, there are persons who suffer the disproportionate impacts of environmental degradation owing to factors such as an unusual susceptibility to certain types of environmental harm or being denied their human rights [26] (Principle 14, Commentary para 40). This could include women, children, Indigenous Peoples, persons living in poverty, older persons, persons with disabilities, ethnic, racial, or other minorities and displaced persons [26] (Principle 14).

Many of these persons are recognised as being in vulnerable situations due to being historically subjected to societal discrimination which continues today and manifests itself in the lack of recognition of their political autonomy, rights, and a lack of concentration of political power into their hands. For instance, women are often excluded from participation in environmental decision-making processes, despite key roles in natural resources management and agriculture [1] (para 32) [13] (para 48) [49] (para 38). This has resulted in the recognition of the requirement for states to adopt gender-responsive approaches in the discharge of their obligations to guarantee and protect the rights of women and girls in the environmental context [50], including protecting and guaranteeing a safe environment in which women and girls can express their views free from the risk or threat of violence and reprisal, as has been recognised in the context of Children and Youth and Student defenders [51] (para 50) [52] (paras 101–109). Furthermore, calls for gender-transformative approaches are requesting to go beyond gender-responsive ones, i.e., the latter address women’s and men’s priorities and interests whilst gender transformative approaches seek to change more fundamental structural and systemic factors driving discrimination, including social norms [53]. Persons in poverty and ethnic, racial, and religious minorities are commonly excluded from environmental decision-making processes, resulting in their communities becoming the sites of a disproportionate number of waste dumps and power plants, thus exposing them to higher levels of air pollution and hazardous substances [26] (Principle 14, Commentary para 41(c),(g)) [31] (p. 818). Moreover, Indigenous Peoples are also particularly impacted by an absence of the recognition of their rights. This is true as well for local communities whose livelihoods depend on their access to land and specific natural resources. For example, a lack of formal land and tenure rights makes local communities, including Indigenous Peoples, more susceptible to displacement and struggles to defend their lands and waters from environmental degradation due to actions such as land acquisitions, industrial resource extraction, and private sector projects such as the creation of new parks and shopping centres [54,55] (para 54).

Certain social groups may also be deemed to be in vulnerable situations as a result of their being more likely to suffer from the severe effects of environmental harm directly or indirectly in comparison to other groups. In the context of direct effects, this could include children [51] (paras 15–21) [56,57] (pp. 30–34) and older persons who may be more susceptible to heat, pollutants, and vector-borne diseases as a result of environmental degradation such as climate change [26] (Principle 14, Commentary para 41(e)) whilst those suffering indirect effects could include persons with disabilities who are vulnerable to natural disasters and extreme weather conditions as a result of barriers to receiving emergency information in an accessible format and accessing means of transport, shelter and relief [26] (Principle 14, Commentary para 41(f)).

Corporations would therefore need to pay particular attention to their environmental human rights impacts on persons in vulnerable situations (as has been explicitly recognised regarding gender-responsive approaches) [50] (para 48), including ensuring that their consultations with affected persons provide opportunities for those in vulnerable situations to express their views and that such views are considered in decision-making [14] (Principle 18).

2.3. Recognition of a Right to a Safe, Clean, Healthy and Sustainable Environment

The recognition of existing human rights obligations being applicable to environmental contexts has led to discussions that consistently return to the question of whether the international community should adopt a right to a safe, clean, healthy, and sustainable environment. The recognition and implementation of such a right is not only fundamental to the protection of human dignity, but also seems to be the means through which it can be ensured that human rights norms relating to the environment continue to develop in a coherent and integrated manner [58] (para 16) [59] (para 39) [60]. The Special Rapporteur on Human Rights and the Environment proposed a right to a safe, clean, healthy, and sustainable environment based on the current obligations and responsibilities states and businesses have under international human rights law, and the commitments made by states under international environmental instruments. He proposed that the right could be modelled after the right to water and sanitation, which is also not explicitly enshrined in any international human rights treaty [58] (paras 14, 15) [49] (para 43). On this basis, the procedural elements of this right would include access to environmental information, public participation in environmental decision-making, and access to an effective remedy [61] (para 2). The substantive elements would include: a safe climate; clean air and water; adequate sanitation; healthy and sustainably produced food; non-toxic environments for habitation, work, study, and play; and healthy biodiversity and ecosystems [61] (para 2). Therefore, what is currently required is the universal recognition and adoption of such a right at an international level. At the time of writing, calls for the UN to recognise and implement this right [59,62,63,64] were partially answered when the HRC adopted Resolution 48/13 recognising the right to a safe, clean, healthy, and sustainable environment as a human right which is important for the enjoyment of human rights as a whole and is related to other rights [9].

3. The Emergence of the Environment in Corporate Responsibility and Business and Human Rights’ Discourses

As articulated in the preceding discussions, under international human rights law the corporate responsibility to respect human rights is applicable to an environmental context. However, how far has this been explored in the Corporate Responsibility and BHR discourse? This section addresses this evolution.

As Muchlinski eloquently puts it, ‘multinational enterprises are key to effective transnational environmental protection due not only to their capacity to produce environmental harm, but also their ability to develop new, environmentally friendly technology and management practices that can be disseminated internationally, and to do so regardless of actual levels of government regulation [65] (p. 614).’ Mapping where exactly the environment began to be considered in the discourse exploring corporate responsibility brings forth two related yet distinct schools of thought: (1) Corporate Social Responsibility (CSR) and (2) BHR. Both similarly focus on facilitating the adoption of responsible and socially beneficial corporate conduct [66] (p. 237). However, as it shall become clear in this discussion, CSR is largely understood as being grounded in the adoption of voluntary practices (although this understanding has been challenged by a number of legal scholars) [67,68,69,70] arising from a social and moral expectation of appropriate corporate conduct and the responsibilities to society that arise from such expectations, whilst BHR is grounded in the human rights issues that arise from corporate activities and the responsibilities businesses have to address and mitigate such issues [66] (p. 237). Whilst aiming to be interdisciplinary and to rely on “interlinkages” and overlaps with other issues and fields on the ‘periphery,’ BHR is mostly dominated by lawyers and legal discourse whilst CSR is mostly developed in schools of business and management [71] (p. 203). However, when and in what context did concern for the corporate impact on the environment begin to emerge in both approaches to human rights related corporate behaviour?

3.1. Corporate Social Responsibility and Corporate Environmental Responsibility

The emergence of CSR as a concept in academic discussion can be traced back to the 1920s and 1930s [68,72], which then paved the way for the works of Bowen [73], Davis [74], Frederick [75], Votaw [76,77], McGuire [78], and Carroll [79] in the 1950s, 1960s, and 1970s [80]. These works acknowledged the growing recognition of the corporation as an organ of society, and as a result, postulated that a corporation ought to abide by societal values in its pursuit of economic profit [80]. However, it was not until the 1990s, in an era of accelerated globalisation and the ever-growing complicated structure of multinational companies, that scholars considered CSR in the international context [80] (p. 291) [81] (p. 33).

Yet, we can see that concern over corporations’ impacts on the environment began to emerge in the 1970s. This was when the American Committee for Economic Development published its report entitled ‘Social Responsibilities of Business Corporations’, which articulated a definition of CSR based on three concentric circles [80] (pp. 274–275) [82] (p. 15). A responsibility to be aware of shifting social values such as environmental conservation, whilst executing its economic function (in supplying goods and contributing to job creation and economic growth) featured in the intermediate circle [80] (p. 275) [82] (p. 15). Encouraging awareness of environmental conservation whilst businesses conduct their economic function illustrates a significant shift in the conceptualisation of the responsibilities of businesses [80] (p. 275). However, whilst awareness increased, there was limited adoption of concrete practice in the early 1970s, and the priorities of businesses remained–and arguably continue to be–solely concerned with the pursuit of profit.

Ever since, the consideration of environmental issues has been part of the broader framework of CSR seeking to assess corporate impacts [83] (para 97). It was in the 1990s, when a new subset of CSR initiatives which exclusively focused on the environment—what some commentators have referred to as Corporate Environmental Responsibility (CER)—began to evolve. CER can be defined as those voluntary practices (like CSR) that seek to benefit the environment or mitigate adverse corporate impacts on the environment, beyond those practices required of corporations by law [84] (p. 215).

CER as a concept in academic discussion emerged as a response to economists who were critical of CSR, and who argued that the adoption of CSR practices, including those that sought to protect the environment, would impose more costs than benefits for businesses (such as market advantage) and would serve as a hindrance to corporate innovation [84] (p. 216). The works of Porter and van der Linde [85,86], Cohen [87], Elkington [88], and Green, Groenewegen, and Hofman [89] were amongst those which challenged this misconception, arguing that participation in such practices would in fact facilitate innovation and economic growth for corporations thus delivering business benefits, especially in the longer-term [84] (pp. 216–217). As Beate Sjåfjell and Christopher Bruner explain, in the corporate law and corporate governance literature, environmental, social, and economic sustainability issues have tended to be approached from the perspective of the business case for sustainability, focusing on internalising environmental and social impacts in corporate decision-making, and only to the degree that such processes produce positive effects on long-term financial performances [90] (p. 4). Gunningham, in a review of whether CER has shaped corporate environmental performance, noted that there is increasing evidence of the adoption of environmental initiatives by corporations, such as voluntary environmental audits and ecological life cycle analyses of products and waste, which could suggest that a “sea [of] change in corporate attitudes toward the environment” is taking place [84] (p. 221).

However, the extent to which such a shift in corporate attitudes towards their environmental obligations can be credited to voluntary commitments to responsibility is debatable. Evidence is difficult to collect due to a lack of transparency in corporate behaviour but wider indicators of environmental degradation indicate that the sum of corporate actions, especially in the light of economic growth, are insufficient [91].

The discussion shall now turn to a consideration of the field of BHR. While highlighting the differences among these two approaches to corporate behaviour and their consequences it is also important to remark that they have not operated in separate vacuums. They have interacted, enhanced, and undermined each other beyond the simplistic binary of voluntarism vs. mandation. For example, whilst voluntary approaches have set the stage for harder laws, they have also been used to argue against binding regulatory regimes. On the other hand, hard laws have crystallised static, and in many cases deficient, answers to certain realities on the ground, preventing more radical solutions.

3.2. Business and Human Rights, and the Environment

In contrast to CSR (and CER), BHR is grounded in the notion of corporate responsibility with a focus on addressing or preventing the impact of corporate activity on individuals and communities, arising out of the expectations established in international human rights law [66] (p. 238). The birth of BHR on the international stage can be traced back to the 1970s which saw the publication of soft law norms on guiding the responsibilities of transnational corporations [92] (p. 3) [93,94], and a series of corporate-related disasters which resulted in severe loss of life such as the 1984 Bhopal gas disaster which killed thousands in India [92] (p. 3). However, it was not until the 1990s and 2000s, which saw a rise in the reports of corporate involvement in adverse human rights violations, that BHR became widely discussed [81] (pp. 27–28). During these years, NGOs began to publish reports on the complicity of corporations in human rights violations, the US witnessed a wave of litigation under the Alien Torts Claims Act against corporations violating human rights in their operations abroad, and the UN launched the UN Global Compact [81] (pp. 26–29). Furthermore, a specialised UN Working Group was established by the now extinct UN Sub-commission on Human Rights, on the relationship between the enjoyment of human rights and the working methods and activities of transnational corporations, which was responsible for the drafting of the UN Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with regard to Human Rights that were eventually abandoned in 2003 [81] (pp. 26–29) [95]. These developments culminated in the appointment of John Ruggie as a Special Representative to the Secretary-General (SRSG) on the issue of human rights and transnational corporations and other business enterprises in 2005, and the adoption by the HRC of the UNGPs in 2011 [81] (p. 29). Since then, a hive of activity has been developed to operationalise the implementation of the UNGPs and extend their scope to areas either not originally reflected in its principles or that were only sketched. This work has been led by the UN Working Group on Business and Human Rights, UN treaty bodies that interpret the scope of the obligations in their respective treaties in relation to the business and human rights context, and intergovernmental organisations, notably the OECD.

Despite the continued evolution of the BHR field, the relationship between human rights and the environment did not receive significant attention until 2008, when the SRSG in an addendum exploring the scope and patterns of alleged corporate-related human rights abuses made reference to the environment:

“[N]early a third of cases alleged environmental harms that had corresponding impacts on human rights. Environmental concerns were raised in relation to all sectors. In these cases, various forms of pollution, contamination, and degradation translated into alleged impacts on a number of rights, including on the right to health, the right to life, rights to adequate food and housing, minority rights to culture, and the right to benefit from scientific progress. A number of environmental issues also prompted allegations that a firm had either impeded access to clean water or polluted a clean water supply, an issue raised in 20 per cent of cases [10] (para 27)”.

It is through this analysis that the SRSG began to establish, before such a notion was explicitly considered at UN Level, that there was a nexus between the environment and human rights in the BHR context. This is significant because it established early on in the BHR discourse that such a connection between the environment and human rights existed, and that environmental issues must therefore form part of the wider framework of BHR. Surprisingly, the UNGPs themselves do not reflect this clear relationship between human rights and the environment. In fact, the only reference to the environment can be found in the commentary of the UNGPs with regard to the regulation of business via legislation [14] (Principle 3, Commentary), and the integration of human rights due diligence into existing risk assessment processes such as environmental impact assessments [14] (Principle 18, Commentary). As such, the UNGPs fell short in establishing the existence of a relationship between human rights and the environment in the context of commercial operations and in articulating what the operationalisation of such a relationship would entail. As a consequence, the next ten years saw a development in the policy and practice of corporate responsibility in the absence of significant consideration of the environmental aspect of human rights in the business and human rights dynamic.

At the same time, academic scholarship has been instrumental in exploring the theoretical and practical operationalisation of this relationship and the inquiry into the relationship between human rights and the environment in the BHR context. Turner and Sara Seck paved the way, with further elaboration by diverse authors, including Chiara Macchi [96] and Nadia Bernaz [97]. In Business, Human Rights and Climate Due Diligence: Understanding the Responsibilities of Banks [97], Macchi and Bernaz argue that whilst international standards such as the UNGPs and OECD Guidelines do not establish standards on climate change, this does not mean that such responsibilities are non-existent. On the contrary, through the adoption of a climate lens to these soft law instruments and privately developed guidelines, and following a consideration of climate jurisprudence, the authors articulate the responsibilities of banks (and the financial sector) in the context of climate change and human rights, including the adoption of a climate due diligence process. As argued in the next section, climate change is only one aspect of the environment, and the attention to business and biodiversity dependencies and impacts also demands attention from a BHRE framework.

The deficient articulation of the environment and human rights relationship in the context of BHR is also manifesting itself in current efforts towards the drafting of an LBI. The second revised draft of the LBI includes some provisions which acknowledge the environment–human rights nexus. For example, “environmental rights” were included in the scope of rights that, where infringed upon by businesses, would constitute a “human rights abuse” for the purposes of the treaty [98] (Article 1(2)). This seems to illustrate an understanding that environmental rights are protected under international human rights law as established above. However, the failure to define what is meant by “environmental rights” seems to illustrate a lack of consideration concerning how environmental issues intersect with human rights, particularly in the BHR context. This has given rise to the concern that this provision (amongst others) is simply merging environmental rights with human rights [99] (p. 154) [100] (p. 188), without any due consideration as to how these human rights and the environment intersect with one another and how they could be operationalised to address the impact of corporate activities. As if it was practice following the UNGPs, the Second Revised Draft seems to consider environmental issues as an “add-on,” and fails to comprehensively integrate them into the framework.

Consequently, the Third Revised Draft, published in August 2021, seemingly seeks to address this issue by replacing “environmental rights” with the more specific “the right to a safe, clean, healthy and sustainable environment” [101] (Article 1(2)). But this is the only substantial “environmental” amendment which arguably shows once again a lack of consideration as to how the relationship could be operationalised within treaty provisions. For example, the right to a safe, clean, healthy, and sustainable environment could have been included in the scope of victims’ rights under the treaty in the context of the guarantees of humanity and dignity, or even the right to life and personal integrity, both of which are well established as being core components of the relationship between human rights and the environment. As such, as with the Second Revised Draft, the Third similarly does not provide a framework for corporate activity based on a clear integration of human rights and the environment, and thus reinforces the artificial separation between human rights and the environment.

The continued existence of this division in BHR efforts can perhaps be attributed to the structure of the legal architecture in which it operates [102]. Turner explores this in his contribution to this Special Issue through the adoption of a macro-legal analysis to examine the ways in which a range of legal regimes facilitate corporate harm to human rights and the environment [29]. As Turner identifies, legal regimes including company law and international investment law have various components that directly influence corporate decision-making on human rights and environmental matters, and consequently enable corporate harm to occur, leading to the well-established conclusion that a significant reform of legal norms that engage with corporations is required [92] (pp. 12–13) [102,103].

Before concluding how we can facilitate such reform, recent developments in the BHR field which have sought to grapple with the absence of global norms need to be considered. Therefore, in the next section, we consider some of the ways in which states and individuals have sought to articulate corporate accountability for human rights and environmental harm.

4. Articulating Human Rights and Environmental Accountability in the Absence of a Business, Human Rights and Environment Framework

The previous sections have argued that there is an absence of a coherent and systematic integration of environmental considerations within the wider BHR framework, despite the well-founded recognition of a relationship between human rights and the environment. In recent years, progress has been made in an attempt to fill this lacuna by virtue of very specific developments, which have the potential to articulate human rights and environmental accountability even if the original BHR framework is limited. We identify two major developments, which the authors in this Special Issue build upon: (1) joint human rights and environment transparency and due diligence standards, and (2) climate change litigation. The next sections critically explore the current developments in both areas and argue that despite being positive developments, they are not the solution for an integrated approach to accountability for human rights and environmental harm in the context of commercial operations.

4.1. Developing Joint Human Rights and Environment Transparency and Due Diligence Standards

The adoption of processes (whether voluntary or mandatory) that seek to monitor or assess corporations’ human rights and environmental impacts has long existed in the CSR and BHR fields, though often in isolation of each other. Whilst the adoption of a due diligence process remains an inherent element of the corporate responsibility to respect human rights [14] (Principles 17–21), less attention has been given to it in environmental contexts. The UNGPs clearly establish transparency in the form of external communication, and due diligence for human rights as the cornerstone of corporate responsibility, but they are silent with regard to environmental harm. Interestingly, the OECD Guidelines define the notion of due diligence generally with respect to businesses’ harmful activities and specifically in the context of human rights, employment, industrial relations, bribery, and extortion, but not explicitly as such regarding the environment. Moreover, even though they describe processes of risk identification, mitigation, and transparency which are closely related to the definition of due diligence, they do not do so explicitly. To illustrate, in regard to human rights risks, businesses are required to ‘[c]arry out human rights due diligence as appropriate to their size, the nature and context of operations and the severity of the risks of adverse human rights impacts [104] (Human Rights, para 5)’, which is in line with the UNGPs, but with regard to environmental risks businesses’ responsibilities are to: ‘Assess, and address in decision-making, the foreseeable environmental, health, and safety-related impacts associated with the processes, goods and services of the enterprise over their full life cycle with a view to avoiding or, when unavoidable, mitigating them’ [104] (Environment, para 3) and ‘[m]aintain contingency plans for preventing, mitigating, and controlling serious environmental and health damage from their operations, including accidents and emergencies; and mechanisms for immediate reporting to the competent authorities’ [104] (Environment, para 5).

The last decade has witnessed the adoption of several national laws that establish an obligation for corporations to disclose non-financial information, including human rights and environmental information. Whilst environmental reporting has long been demanded and voluntarily produced by some companies, amalgamating these different aspects of non-financial information is more recent. Several regulatory systems impose a range of obligations based on the premise that when investors and consumers understand corporate activity and its impact, they will make informed choices which would then pressure corporations to ‘clean their act’ [105,106], thus building on the premise that information is key to accountability [105,106,107] (p. 523). A related set of normative instruments furthers this approach by requiring corporate reporting on policies and procedures, including due diligence procedures [108,109,110], and demands a more substantive approach to prevention, mitigation, and remediation, including imposing obligations to develop due diligence plans which would give rise to liability if harm occurred [111,112]. Current national legislation mandates the reporting on the structure of supply chains and what the risks are to those affected by corporate activities. All refer to the need to disclose corporate efforts to exercise human rights due diligence in their supply chains. Most of the due diligence related regulations have narrowly focused on specific issues, such as preventing human trafficking and modern slavery in supply chains [108,109,110], or commodities that are directly linked to human rights violations, such as conflict minerals [113,114]. However, very few have considered both human rights and the environment. The EU Non-Financial Reporting Directive (NFR) opted for a broader scope of the corporate obligation to produce a consolidated non-financial statement making public information necessary to understand businesses’ development, performance, position, and the impact of its activity, relating to the environment, social aspects, employee matters, respect for human rights, anti-corruption, and bribery, recognising that enhancing the accountability and transparency of companies would in turn stimulate investment by ensuring that investors can make informed decisions and therefore enhance companies’ overall performance [115,116] (p. 23) [117] (p. 622). However, there is no clear recognition of the interaction between the harm and how much environmental impact may derive from human rights violations [117] (p. 634). Interestingly, the NFRD uses the word “should” with respect to environmental matters, but the words “may” and “could” in relation to social matters, human rights, and anti-corruption measures, which implies that the obligations regarding the latter are more flexible. From this wording it appears that environmental matters are a key component of the report, and that social and human rights considerations are secondary [117] (p. 634). In addition, subsequent non-binding guidance from the European Commission (2017 Guidance) considered each issue in isolation and did not provide an integrated approach to human rights and the environment, treating them as separate issues with separate benchmarks [118]. The references to the environmental impacts in the Guidelines are also narrowly focused, with most examples simply mentioning ‘climate related risks’ without considering other environmental impacts, such as biodiversity losses, nor the interaction between human rights and the environment. These guidelines were accompanied by a supplement on reporting climate-related information in 2019 [119], which elaborates on the 2017 guidelines suggestions regarding how to consider the environmental and social materiality, stating that ‘climate-related information should be reported if it is necessary for an understanding of the external impacts of the company’ [119] (p. 4). These guidelines are expected to be most interesting to citizens, consumers, employees, business partners, communities, and civil society organisations, but also increasingly important to investors [119] (p. 4). However, the climate-related supplement contains no reference to human rights when considering the climate change impacts which are materially relevant for disclosure. The only reference to social and human dimensions are related to the risks for companies themselves (financial materiality), such as losing the skills and motivation of employees, and the level of trust a company enjoys amongst external stakeholders [119] (pp. 6–7). As such, the NFRD represents a missed opportunity, as it is too timid and restrictive in terms of advancing the debate towards the harmonisation of human rights reporting by companies [119] (p. 6) and equally towards a better integration of the responses to environmental and human rights related risks. At the time of writing, the NFRD is being reviewed as part of the “European Green Deal” [120], with a proposal for a Corporate Sustainability Reporting Directive (CSRD) already being considered [121]. The review aims to firstly improve disclosure of climate and environmental data by companies to better inform investors about the sustainability of their investments, and secondly, to give effect to changes required by the new regulations, including those related to taxonomy and sustainability-related disclosures in the financial services sector [122]. The review has involved consultations, in which the Commission identified that the non-financial information disclosed by companies in the framework of the NFRD does not meet the needs of investors and others regarding sustainability and declared that problems in the quality of reporting create an accountability gap and that high quality and reliable public reporting will contribute to the creation of a culture of greater public accountability [122]. In this respect, it does not provide hope for an integrated approach to human rights and the environment.

Other substantive due diligence legislation has been more forward thinking and has included both human rights and environmental violations in the scope of the obligation to prevent and address harm. Thus, the French Duty of Vigilance Law (2017) places a due diligence duty on large French companies that are required to have a “vigilance plan,” which establishes effective measures to identify risks and prevent severe impacts on human rights, health, safety, and the environment resulting from the company’s own activities as well as those of its subsidiaries, subcontractors, and suppliers [111] (Art L. 255-102-4). This law contains specific liability provisions for a failure to adopt an adequate plan and when specific harm has occurred as a consequence of such failure. As Savourey and Brabant point out, most commentators have focused on analysing the human rights and health and safety provisions of the law whilst the environment angle has only gained increased attention in the last two years, and mostly from a climate change perspective [123] (p. 146) [124]. As developed further in the next section, lawsuits are already testing the interaction between environmental harm and human rights in the context of this law. The 2021 German Act on Corporate Due Diligence in Supply Chains, which will enter into force in 2023, also includes the joint references to human rights and the environment. It establishes an obligation for large companies to identify potential human rights violations and environmental harm in their supply chains by direct suppliers, and if they gain “substantiated knowledge” of a potential abuse, also by indirect suppliers. Contrary to the French law, the German law covers environmental impacts only where these impacts are linked to human rights violations. For example, the due diligence requirements of the law cover environment-related human rights risks such as water pollution, air pollution, or harmful soil alteration which is likely to impact a person’s health, their access to safe drinking water, or access to the land on which their livelihood depends [125] (p. 8). The German law also creates an action for affected parties, albeit not as far reaching as the French one [126].

There is not enough data available on the impact of due diligence regulatory frameworks and obligations on the ground, specifically regarding those directly affected by corporate activity [127]. In addition, there is no consideration of the unintended consequences of implementing due diligence strategies [127]. In addition, current regulations seeking to address corporations’ human rights and environmental impacts are insufficient at integrating both considerations into a comprehensive framework and are therefore ineffective in addressing such impacts. As Almut Schilling-Vacaflor explores in Integrating Human Rights and the Environment in Supply Chain Regulations [125], the majority of laws adopted to regulate corporations’ supply chains focus exclusively on either environmental or human rights, resulting in a framework that produces a fragmented due diligence response where human rights and environmental issues are considered in isolation of each other. In addition, those which do consider both environmental and human rights issues and thus integrate both into due diligence processes achieve a more integrated approach in theory, but not in practice due to a number of factors such as cognitive factors which result in these processes being characterised by selective perspectives on specific types of environmental risks, whilst neglecting others, as Schilling-Vacaflor examines in the context of beef and soy supply chains from Brazil [125].

Claire Bright and Karin Buhmann in Risk-Based Due Diligence, Climate Change, Human Rights and the Just Transition [128] also arrive at the same conclusion when addressing the gap between human rights and the environment, arguing that the adoption of due diligence processes that consider corporations’ human rights and environmental impacts in an integrated manner are core to addressing (via prevention, mitigation, and remediation) climate change (and climate related human rights) impacts. Thus, this gap represents a key component that we cannot neglect in our pursuance of a just transition to a green economy. As mentioned before, attention to the environment is not comprehensive if the focus is exclusively on climate change; biodiversity and its human impacts need to be part of the debate and the regulatory design, thus reflecting that there are environmental impacts which are risks in their own right, beyond being consequent risks to human health.

Furthermore, there has been little consideration of the operationalisation of these integrated human rights and environmental due diligence processes in the context of public procurement. As O’Brien and Martin-Ortega put it, individual governments are one of the largest single purchasers operating in the global market and as such are best placed to influence business conduct in the context of human rights and the environment [129] (p. 245). However, the lack of consideration as to how this integrated approach could be operationalised in the context of public procurement has led to the existence of a number of factors, such as the adoption of unclear policies and laws (or lack thereof), as explored by Laura Treviño-Lozano in Sustainable Public Procurement and Human Rights: Barriers to Deliver on Socially Sustainable Road Infrastructure Projects in Mexico [130], which only serve to hinder sustainable procurement and consequently further the division between human rights and the environment in practice.

4.2. Climate Litigation

Climate litigation is by no means a new phenomenon; it is commonly recognised as originating in the United States in the 1980s [65] (pp. 638–641) [131] (p. 8). However, it is only in the last decade that a growing wave of climate cases have been brought on human rights grounds [131] (pp. 8, 26) [132]. Whilst the majority of these cases are brought against states, those brought against corporations are also on the rise, owing to the recognition not only of the significant impact of corporate activities in contributing to climate change, environmental degradation (e.g., biodiversity losses and ecosystem services degradation), and human rights harm but also their role as key actors in international efforts towards a just transition to a green economy [8,133] (p. 845) [134].

These climate cases against corporations have covered and continue to cover a broad range of issues, including corporate due diligence and its consequentially associated duties as well as the establishment of corporate human rights and climate responsibilities, often with the intention of seeking accountability for human rights and environmental harm, including harm perpetuated by climate change [131] (pp. 27–30). For example, in Notre Affaire a Tous and Others v Total, which is ongoing at the time of writing [135], several French NGOs and local governments are pursuing proceedings against French oil corporation Total under the French Duty of Vigilance law, the French Commercial Code, and the French Environmental Charter for an alleged failure to adequately report on the climate risks associated with its activities and mitigate the impact of those risks in line with the Paris Agreement [136,137]. As briefly mentioned earlier, the French Duty of Vigilance law requires French companies to produce a vigilance plan, reporting on their identification and mitigation of human rights and environmental harm that they directly or indirectly cause or contribute to through their activities or the activities of their subsidiaries. To this end, the claimants are seeking a court order to compel Total to publish a new duty of vigilance plan, which adequately: (1) identifies the risks resulting from the GHG emissions generated by the use of the goods and services Total produces; (2) identifies the risks of severe ecological and climate-related damage, as established in the last IPCC special report of October 2018; (3) demonstrates the adoption of actions that would guarantee that Total’s activities are consistent and compatible with the climate objectives of the Paris Agreement [137,138] (p. 14).

Moreover, Lliuya v RWE AG [139] is an example of a case through which a focus on seeking accountability for environmental damage could have implications for human rights impacts arising from corporate contributions to climate change. In 2015, the claimant pursued a declaratory judgment and damages (to cover the cost of flood defences) in Germany against RWE (Germany’s largest producer of electricity). The claimant alleged that RWE, having knowingly contributed to climate change through their substantial levels of GHG emissions, was responsible for the melting of mountain glaciers near his town of residence, Huaraz in Peru, which has since caused water in Lake Palcacocha to reach dangerous levels that pose a risk of flooding to Huaraz, including the claimant’s property [139,140]. The District Court dismissed the claim for a declaratory judgment on the grounds that the claim was illegitimate and unfounded, noting that the claimant could not be provided with an effective remedy since even if RWE stopped emitting GHGs, in light of other GHG emitters worldwide, the flood risk of Lake Palcacocha would not cease to exist [139,140]. The Court further noted that it would be impossible to identify a “linear chain of causation from one particular source of [GHG] emission[s] to one particular damage”, such as any specific impacts resulting from climate change [139,140]. In 2017, the Regional Court of Hamm recognised the claimant’s appeal as admissible, and the case will move to the evidentiary stage to determine whether (1) the claimant’s home is at risk of flooding due to rising water levels in Lake Palcacocha, and (2) if there is a causal link between RWE’s CO2 emissions and the rising water levels [140,141] (paras 4, 8). Whilst this case does not explicitly refer to human rights norms, it could potentially have significant implications for the BHR field, particularly in bridging the gap between human rights and the environment in the context of corporate responsibility, should the court rule in favour of the claimant. An already significant development in this vein is the recognition of the Regional Court that a corporation could be held liable for climate change-related damages resulting from its GHG emissions [133] (pp. 855–856) [140]. Furthermore, this case seems to highlight the series of barriers claimants face in seeking accountability for corporate human rights and environmental impacts, such as causal links. Beyond this, claimants will often spend decades battling jurisdictional barriers in the home-states of the corporations that have caused or contributed to the environmental harm which has interfered with their rights, as in the cases of Vedanta Resources PLC and another v Lungowe and Others [142], and Okpabi and others v Royal Dutch Shell Plc [143,144].

Strategic litigation seeking to influence a change in corporate practices in relation to climate change continues to be mobilised, with approaches ranging from cases pursued directly against corporations (e.g., those with the highest emissions such as Carbon Majors or with a high carbon footprint) or cases that are not pursued directly against corporations but will nevertheless have an indirect impact on corporations (particularly those that are high-emitting), such as cases against financial actors (which may lead to an increased cost of capital for corporations) or government bodies (which may lead to increased regulation) [131] (pp. 27–28).

For example, in Urgenda Foundation v The State of the Netherlands [145], the applicants argued that the Netherlands has a positive duty, enshrined in national laws and international agreements that the state is a party to, to adopt protective measures to reduce greenhouse gas emissions, and that in failing to do so, the Netherlands is breaching its duty of care [145] (para 4.35). The District Court held that in light of the severity of climate change and its resulting impacts, the Netherlands has a duty to adopt climate mitigation measures to reduce GHG emissions by 25% (minimum) by the end of 2020 in comparison to 1990 levels [145] (para 4.83–4.86). Consequent appeals pursued by the Netherlands were rejected by both the Court of Appeal [146] and the Supreme Court [147] that both upheld the decision of the District Court. The Urgenda judgments have been recognised as the first in the world to require a state to adopt a “more ambitious” climate policy which adequately ensures the protection of human rights (in this case, the right to life, private life, and family life under articles 2 and 8 of the ECHR) from the adverse impacts of climate change [148] (p. 275). The Urgenda judgments are particularly significant in light of the courts’ integrated approach to its assessments of the issues, which were informed by the Netherlands’ obligations under its national laws, international human rights laws, and international environmental laws, including the ECHR, the United Nations Framework Convention on Climate Change (UNFCCC), and the no harm principle, thus illustrating the undertaking of an integrated approach by considering both international human rights law and international environmental law [148] (pp. 276–280). This approach is consistent with that which is beginning to be adopted and promoted at the UN Level [26] (Principle 12, Commentary para 34) [24] (para 62), and also seems to represent a gradual bridging of the gap between the legal regimes that can protect both people and planet simultaneously, rather than in isolation of each other.

The significance of the Urgenda judgments is also evident in Milieudefensie v Royal Dutch Shell [149], which builds on Urgenda by extending the arguments to corporations (in this case Shell) in that, considering the severity of the threat of climate change and the Paris Agreement’s objectives, Royal Dutch Shell (RDS) has a duty of care under the Dutch Civil Code which has been informed by the ECHR (articles 2 and 8) to take action to reduce its GHG emissions [150]. The District Court of the Hague held that RDS has an obligation to reduce the CO₂ emissions (scopes 1–3) [149] (para 2.5.4) of the Shell group’s activities by 45% (relative to 2019 levels) by the end of 2030 through the Shell group’s corporate policy [149] (para 4.4.55). This includes direct emissions from sources owned or controlled fully or in part by the Shell Group (scope 1); indirect emissions from third-party-sources from which the Shell Group have purchased or acquired electricity, steam or heating for its operations (scope 2); and all other indirect emissions (from sources owned or controlled by third parties) resulting from the Shell Group’s operations (scope 3) [149] (para 2.5.4). This duty arises from the “unwritten standard of care” under the Dutch Civil Code, which states that acting in conflict with what is generally accepted (as proper social conduct) according to unwritten law is unlawful [149] (para 4.4.1) [151]. In the circumstances of the case, what is therefore recognised as “proper social conduct” exercised by RDS would be—in light of the Shell group’s historical substantial contribution to CO₂ emissions, the consequent climate and human rights impacts of those emissions on Dutch residents, and its responsibilities to respect human rights as explored in soft law principles such as the UNGPs and OECD Guidelines—to exert influence and control over the Shell group’s emissions, through its determination and implementation of the group’s corporate policies, to limit and reduce its CO₂ emissions and thus any further contributions by the entire Shell group to climate change [149] (paras 4.4.5–4.4.39). The District Court provided RDS with flexibility in allocating cuts in its emissions across the three scopes, provided that the total emissions were reduced by 45%, noting that:

“This is an obligation of results as regards the Shell group’s activities. With respect to the business relations of the Shell group, including the end-users, this constitutes a significant best-efforts obligation, in which context RDS may be expected to take the necessary steps to remove or prevent the serious risks ensuing from the CO₂ emissions generated by them, and to use its influence to limit any lasting consequences as much as possible. A consequence of this significant obligation may be that RDS will forgo new investments in the extraction of fossil fuels and/or will limit its production of fossil resources. [149] (para 4.4.39)”.

As in Urgenda, the District Court in Milieudefensie also begins to consider both international human rights law and international environmental law in its interpretation of the “unwritten standard of care”. In particular, the court rejected RDS’ argument that the human rights invoked by the appellants offered no protection against the effects of dangerous climate change, noting that, in light of its responsibilities to respect human rights under the UNGPs, and the recognition by the UN Human Rights Committee and the UN Special Rapporteur on Human Rights and the Environment of the threat of environmental degradation and the applicability of human rights norms to environmental issues, the severe and irreversible impacts of climate change constitute a threat to the human rights of Dutch residents [149] (paras 4.4.10–4.4.25). Whilst the references to the relationship between human rights and the environment are limited here, this could be interpreted as the court having recognised some component of this relationship, namely that an environment of a certain standard (e.g., without the risk of the significant threat of climate change) is a precondition for the full enjoyment of human rights, and that human rights norms are relevant in addressing environmental issues such as climate change. Shell has since announced its plan to appeal the District Court’s decision on the grounds that addressing climate change requires a coordinated and globally collaborative approach (rather than actions undertaken by one Carbon Major), and that the court failed to consider its Powering Progress Strategy released in early 2021 [150,152]. Whether this will have any impact on this landmark decision remains to be seen.

Liliana Lizarazo Rodriguez in The UNGPs on Business and Human Rights and the Greening of Human Rights Litigation: Fishing in Fragmented Waters? [153] argues that climate litigation, particularly the current wave (referred to as the “third wave”) of climate litigation, such as the Urgenda and Milieudefensie judgments explored earlier, are progressively greening approaches to human rights and environmental issues to address gaps in the BHR framework, such as those previously mentioned including the lack of integration of both environmental and human rights concerns. Rodriguez argues that this greening approach has been particularly targeted at the UNGPs, the greening of which can be seen at (1) global regulation levels, through the development of new forms of regulations that seek to ensure corporate respect for human rights and the environment; and (2) through the development of social and ecological movements that have pursued strategic human-rights and climate litigation against corporations, grounded in the corporate responsibility to respect human rights under the UNGPs [153].

Finally, it is important to consider how corporate responsibility will evolve to include not only liability for past harm but also duties regarding transition to a non (or less) carbon-based economy. Mark B. Taylor in Counter Corporate Litigation: Remedy, Regulation, and Repression in the Struggle for a Just Transition [134] explores this specific aspect, examining the role of litigation which attempts to enforce legal (hard or soft law) standards against corporations as part of the wider transition to a sustainable economy. Through this examination, Taylor identifies three factors, drawn from environmental and climate-related human rights cases, that are core to facilitating a just transition to a sustainable economy, including the regulation of corporate activities via duties of care. These are: (1) the provision of access to remedies for environmental and human rights harm; (2) the regulation and enforcement of corporate duties of care; (3) the repression of predatory business models that generate profit through the exploitation of people and the planet.

5. Conclusions: Building the Foundations—Towards a Business, Human Rights and Environment Framework

The previous sections have shown how the gradual recognition of the environmental–human rights nexus at international, regional, and national levels has led to environmental concerns being considered in an ad-hoc and piecemeal manner. Environmental rights are treated as an “add-on” to existing frameworks and mechanisms that have since evolved, and thus continue to perpetuate the division between human rights and the environment and a lack of clarity as to how such a relationship could be operationalised.

Whilst a BHRE Framework as such does not exist, the developing regulations on transparency, non-financial reporting, due diligence, and climate litigation (particularly those cases which have grounded their arguments in human rights norms), indicate that the corporate responsibility to respect can be articulated as a responsibility to respect human rights and the environment, and that corporations will be held liable when they fail to adequately meet their responsibilities.

As this wider responsibility develops, it is important that an integrated approach to standards, processes, enforcement, and liability which recognises the interconnections between human rights and environmental protection is articulated both theoretically and in practice. This needs to be an integrated approach which relies on the principles of both International Human Rights Law and International Environmental Law and understands the different objectives and rationales of each legal system and how they have evolved. Such an integrated approach must recognise not only both the interdependency between human and environmental rights but must also consider the potential for conflicting interests. Protecting human rights may involve further degradation of the environment, including biodiversity, whilst attempting to preserve biodiversity may involve having to restrict access to certain resources which in turn may limit the enjoyment of human rights. Environmental damage can occur without direct or immediate harm to people and therefore does not constitute a clear violation of human rights from the outset; it is not until such impacts on human rights can be clearly attributed to environmental harm that a violation or interference would arise. Whilst the approach to addressing climate change by both states and corporations is based on this premise, a word of caution is necessary here. The increased focus on corporate climate change impacts resulting from GHG emissions is only recently being more seriously extended to corporate biodiversity impacts. A sole focus on climate impacts thus risks neglecting other environmental harm which may have direct impacts on human rights. An example is the human impact of biodiversity losses and ecosystem service degradation. While it is challenging enough to assess corporate impacts on the climate and their resulting human impacts, assessing the corporate biodiversity impacts and the human impacts of these is even harder and as such will require further examination as to how such an assessment could be operationalised. Additionally, the close interactions between a changing climate and ecosystem health require attention and an explanation of how these changes then relate to risks to human rights. While climate change solutions are advocated from a perspective of net zero emissions targets for states and companies (i.e., the immediate effects of corporate actions), this cannot be easily translated into human rights harms, which consist of the impacts of corporate action. Human rights are fundamental rights with universal protection: they are not negotiable according to context.

There is no net zero human rights harm, we cannot offset human rights harm, we cannot destroy a community access to their land and resources and simply plant some trees somewhere else, or relocate them to provide them with clean air, access to water, education, healthcare facilities, and so on when we are not considering their right to live as a community in their land. A similar argument can be made for the rights of nature, which recognizes inherent rights associated with ecosystems and species and are more akin to the concept of fundamental human rights. The latter moves beyond colonial mindsets that see nature as a source of resources and something to be controlled, and from which humans are separate rather than an integral part of. These notions underpinned the primacy given to economic growth based on the exploitation of natural resources. There are increasing calls to recognise the rights of nature. The recognition of such rights is thus highly challenging politically, but a move towards recognising both human and environmental rights would represent a truly balanced framework for humanity and nature. The question then becomes: what is the place and nature of business within such a framework? Even more fundamentally, what does this mean for the very nature of future economies?

These are some of the questions which need to be considered if we are to move away from our current framework which operates on a division between nature and humans (and consequently human rights) as shown in Figure 1, and towards a framework that fosters respect in practice for both people and planet, as shown in Figure 2.

In Figure 1 we visualise how in our existing context the separation between nature and humans and the associated assumption of the dominion of man over nature (stemming from Judeo-Christian conceptions and having been reinforced by colonial and post-colonial processes of resource extraction) influences institutions, power relations, and dominant values (instrumental, i.e., the use of resources). Consequently, this maintains the existence of two distinct legal systems: one focused on human rights, and the other focused on the environment. Whilst both regimes have adopted legal strategies to reform business conduct, these strategies focus purely on either human rights concerns or environmental concerns, resulting, as discussed, in a fragmented framework which is inadequate for responses to human rights and environmental impacts.

In Figure 2 we show how an integrated, holistic vision of nature:humans, would shift institutions and power relations, but also provide greater space for relational and intrinsic values, and would imply that as well as human rights there are the rights of nature. This integrated vision could have implications for business, human rights, and the environment, such as reforming our consumption and production patterns and facilitating alternative means for accountability and remedy to address corporate-related environmental and human rights impacts. Achieving both may be challenging given that there are often trade-offs between human and natural rights in practice, but ultimately this is what an integrated human–environment framework constitutes and calls for. It is for the research community to explore what this means for the future of our international legal and economic order, what it implies for the place and nature of business in such an order, and fundamentally how such an integrated framework could be operationalised on the ground to protect and foster respect for both people and the planet.