CHAPTER 12 HUMAN RIGHTS AND EXTRACTIVE INDUSTRIES: ENVIRONMENTAL LAW AND STANDARDS

• Jurisdiction: United States

Human Rights Law and the Extractive Industries
(Feb 2016)
CHAPTER 12
HUMAN RIGHTS AND EXTRACTIVE INDUSTRIES: ENVIRONMENTAL LAW AND STANDARDS
Sara Seck
Associate Professor
Western University Faculty of Law
OOntario Canada sseck@uwo.ca

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SARA L SECK, PhD joined the Faculty of Law, Western University (London, Ontario, Canada) in 2007 and was promoted to Associate Professor with tenure in 2013. She completed her LLB at the University of Toronto's Faculty of Law in 1999 and a PhD at Osgoode Hall Law School in 2008. Sara is a member of the Law Society of Upper Canada. At Western, Sara has taught courses in Public International Law, Environmental Law, and International Environmental Law. She has also developed a new course in Corporate Social Responsibility that considers the legal dimension of business responsibilities for human rights, and the responsibilities of business under international sustainable development law. At Western, Sara is actively engaged in the development of a new Mining Law program in collaboration with the Department of Earth Sciences and the Ivey Business School, supported by Yamana Gold Inc. Sara has researched and published extensively on business and human rights in relation to the extractive industries with a focus on the rights of indigenous and environmentally concerned local communities. She is a member of the International Law Association's Study Group on Business and Human Rights, and Study Group on Due Diligence in International Law. She is a member of the Editorial Board of the new Business and Human Rights Journal (Cambridge University Press), and a member of the governance committee of Columbia University's Teaching Business and Human Rights Network. Her research has been supported by the Social Sciences and Humanities Research Council of Canada, including research relating to the UN Guiding Principles on Business and Human Rights. In September 2015, Professor Seek received the Emerging Scholar Award from the Academy of Environmental Law of the IUCN (World Conservation Union) for her scholarship. Most recently, Sara was appointed a Senior Fellow with the International Law Research Program at the Centre for International Governance Innovation (CIGI) to support research into business responsibilities for human rights affected by climate change.

Prepared for the Rocky Mountain Mineral Law Foundation: Special Institute on Human Rights Law and the Extractive Industries (February 2016)¹

Table of Contents

1. Introduction

2. History of Sustainable Development and Environmental Rights

3. Human Rights and Environment

Ksentini Mandate

Hazardous Substances

Knox Mandate

Mapping Report

Business Responsibilities, Indigenous Rights, and Conceptual Issues

Climate Change

4. CSR and Sustainability Frameworks

UN Global Compact

IFC Performance Standards

OECD MNE Guidelines

Global Reporting Initiative

International Organization for Standardization - ISO 26000

5. Conclusions

1. Introduction

The importance of environmental laws and standards for sustainable development of extractive industries has been well recognized by the international

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community for decades. More recently, the relationship between human rights and environmental protection has received greater attention in light of increased global and local recognition of both substantive and procedural environmental rights. Extractive industries search for, discover, and develop natural resources in countries in which the governmental and civil society institutions necessary to protect human rights may not exist or where governments lack the capacity or will to effectively ensure the protection of human rights. Allegations of human rights violations against extractive industries sometimes involve the use of force in conflict or post-conflict societies. Yet the root cause of many local community concerns over resource extraction that have subsequently led to violent confrontation often originate in different understandings of local environmental rights.

International law's recognition of human rights to environmental protection is often said to distinguish between substantive rights,² and procedural rights.³ While the linkage between environmental harm and human rights has been clearly established within international environmental law since at least 1972, many human rights treaties do not provide direct references to environmental rights as they were drafted before this time.⁴ However, newer international human rights treaties, and two regional treaties, specifically guarantee substantive environmental human rights, as do more than 100 national constitutions, often using explicit language such as a "right to a clean and healthy environment".⁵ Where substantive environmental rights are not explicitly found in the text, global and regional human rights bodies have interpreted rights to life, health, and property, among others, as providing protection for environmental concerns, balanced against a government's desire for economic development.⁶ Moreover, procedural environmental rights to access information, participate in decision-making, and access justice, serve to support the realization of substantive rights.⁷ International environmental law has recognized procedural environmental rights most notably in Principle 10 of the 1992 Rio Declaration and the Aarhus Convention, as well as within many other sources of international, regional, and national law.⁸

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This paper will first briefly examine long-standing environmental institutions and standards that have emerged in conjunction with the embrace of sustainable development, and explore how they relate to business responsibilities for human rights. The paper will then turn to the work of the UN Independent Expert and now Special Rapporteur on Human Rights and Environment, Professor John Knox, whose recent clarification of the content of environmental rights provides a useful framework. Finally, the paper will briefly examine how common corporate social responsibility standards and sustainability frameworks integrate environmental protection and human rights.

2. History of Sustainable Development and Environmental Rights

In a powerful separate opinion in the 1997 Gabcykovo-Nagymorous decision of the International Court of Justice, Justice Weeramantry highlighted that while the right to development is well accepted by the international community, the "protection of the environment is likewise a vital part of contemporary human rights doctrine, for it is a sine qua non for numerous human rights such as the right to health and the right to life itself."⁹ He argued that the challenge of reconciling the needs of development with environmental protection was not new, but one that faced many ancient cultures, from which traditional principles could be drawn.¹⁰ These principles include the principle of sustainable development, which Justice Weeramantry described as "one of the most ancient ideas in the human heritage."¹¹

The link between human rights and environmental protection within contemporary international law is often said to have been forged at the 1972 Stockholm Conference on the Human Environment, attended by delegations from 113 states, observers from 400 NGOs, and representatives of major intergovernmental organizations.¹² Principle 1 of the Stockholm Declaration grounds the Declaration in the language of human rights, providing in part that: "Man has 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 he bears a solemn responsibility to protect and improve the environment for present and future generations." With regard to non-renewable natural resources, Principle 5 provides that they must be employed guardedly so as to ensure against their

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future exhaustion and to ensure their shared utilization with all humankind.¹³ Importantly, paragraph 7 of the Preamble to the Stockholm Declaration highlights that the responsibility to achieve environmental protection is shared by "citizens and communities and by enterprises and institutions at every level, all sharing equitably in common efforts."

Mining and mineral resources are explicitly addressed in recommendation 56 of the Stockholm Action Plan for the Human Environment, recommending information exchange on mining and the environment.¹⁴ Furthermore, the Action Plan proposed that appropriate United Nations bodies assist developing countries by providing experts and information on technology that could prevent the adverse effects of mining on the environment.¹⁵

The formulation of the Stockholm Declaration was criticized by some as too "anthropocentric," and in 1982 the World Charter for Nature was adopted as a resolution of the United Nations General Assembly.¹⁶ The World Charter again called for restraint in the exploitation of non-renewable resources, as well as the need to take account of the compatibility of exploitation with the functioning of natural systems.¹⁷ Principle 1 states that "Nature shall be respected and its essential processes shall not be impaired," while Principle 21 highlights that the responsibility to conserve nature rests not only with States, but "to the extent they are able" with other individuals and groups, including corporations. The interdependence of humans and nature was identified in Principle 6, which states that "In the decision-making process it shall be recognized that man's needs can be met only by ensuring the proper functioning of natural systems," while Principle 7 confirmed the need to take "due account" of the "conservation of nature" in "the implementation of social and economic development activities."

The concept of sustainable development was first articulated in 1987 by the World Commission on Environment and Development (WCED) in the Brundtland Report and defined as "development that...