Corporate Governance, Accountability, Human Rights and Environmental Due Diligence
Corporate accountability and transparency is important not only for the communities who are impacted by businesses, but also for staff and shareholders. Environmental, social and governance concerns are gathering momentum across the corporate world, with corporate profits increasingly at stake from external engagement, and positive social impact being linked to enhanced productivity and investment returns. Businesses therefore have and financial interest in improving their human rights policies and practices.
This is particularly pertinent to the renewable energy sector, which has (and will continue to see) exponential growth and investment, as well as intensifying human rights violations. Businesses are important to communities. They can provide investment, jobs and much needed services. But sometimes in the course of their operations these businesses can harm people, communities and the environment. When this happens, it’s important that the impacted communities can obtain remedies and that the businesses learn and change, so that everyone’s rights are respected.
These sessions will guide attendees through the legal and non-legal obligations of companies, and the actions available that can be taken to enforce rights when businesses fail to act accordingly.
Session 1: Company structures and home countries
This session will provide an introduction to the structure and features of multinational companies, covering national and functional subsidiaries, divisions, and parent/holding companies. This session will provide attendees with the tools and knowledge needed to investigate company structures and subsidiaries, understand the laws that may apply to them, and understand concepts such as limited liability and control, and how they can be mechanised in cross-jurisdictional legal proceedings.
Session 2: Human rights obligations of companies
This session will cover these obligations and expected behaviours, key international standards (including the UNGPs, the OECD guidelines, and the Global Compact), the actions that can be taken if a business does not meet the requirements and the consequences for corporates in cases where the UNGPs are not followed.
Although there is no general international legal duty for companies not to harm human rights and, in some countries, there are no national laws that can be used to challenge harmful activities, there is a global standard for preventing and addressing the risk of adverse human rights impacts linked to business activity: the United Nations Guiding Principles on Business and Human Rights (UNGPs), endorsed in 2011.
The UNGPs set expectations and provides a blueprint for businesses’ policies and processes, and for the past ten years they have guided and defined the efforts of activists, NGOs, lawyers, businesses and States working to ensure corporate consideration of human rights impacts. The largest corporations hold economic power and influence that rivals that of States, yet they have no direct international human rights obligations, and cannot be held accountable or addressed by international law. Despite this, all businesses do have a responsibility to respect human rights, and they can be held accountable to fulfil many of their obligations.
Although businesses do not have legal obligations under international human rights law, they should respect human rights – this international standard of behaviour expected of businesses is the “corporate responsibility to respect human rights”. Additionally, many national laws that regulate business and hold businesses accountable if their operations negatively impact human rights have been passed by States. Businesses therefore have legal obligations under national laws, which may relate to human rights. If a business breaches a provision of national law, it could be legally liable and held accountable.
This session will explore these themes and the particular obligations on companies operating in conflict-affected areas and involved in processes of unlawful displacement and resettlement.
Session3: Legal requirements of companies
In this session, we will explore the steps of investigating the assessment and licensing process, from finding out whether an assessment was completed to understanding the legality of the license. Then, we will discuss what to do if the process has not been completed properly.
An environmental impact assessment is a central pillar of the protection of the environment, and is firmly established as part of the standard duty of care required when planning projects or policies that may have environmental, social, and economic impacts. But, what exactly this process entails, and whether it is legally required, varies across jurisdiction.
Session 4: Corporate Responsibility and Reputational Damage
Following this session, attendees will understand reputational damage, the importance of corporate Human Rights policy statements and the risks linked to poor implementation, be able to translate and understand corporate language on ethical conduct, feel confident inbuilding coalitions that can challenge corporate human rights impacts, and understand how to protect themselves from retaliation and ‘SLAPP suits’.
Companies have a responsibility to respect the human rights of their workers and those involved in their supply chain. Aside from the human and environmental consequences of not respecting rights, organisations who cause or contribute to violations can see a loss of trust from business partners, and catastrophic reputational, financial, and operational damages.
Session 5: Free, Prior and Informed Consent
Media coverage of corporate human rights violations are more common than ever, and businesses are very aware of the impacts not only in the courts, but through civil society, international financial institutions, and the public. This session will look in depth at key cases and tools that can be used when companies do not live up to their codes of conduct around environmental, social and corporate governance.
This presentation and sign-posting session will discuss importance of obtaining free, prior and informed consent, who has the right to it, how to find out if has been sought, key requirements and best practice when consent is not obtained.
There are specific rights and freedoms provided to Indigenous peoples, which relate to economic and social development, culture, environmental and human rights, education and health. These rights are laid out in the UN Declaration on the Rights of Indigenous Peoples and are recognised in a number of international mechanisms.
Free, Prior and Informed Consent is one of these specific rights pertaining to Indigenous peoples. It allows Indigenous communities to give or withhold consent to projects that may affect them or their territories, and allows negotiations around the conditions under which projects will be designed and implemented. Free, Prior and Informed Consent and the right to consultation are powerful tools for communities seeking to defend and protect their territories, and undertaking the process in good faith can help to ensure that businesses create mutually beneficial projects.
This session will go through the regulatory framework for free, prior and informed consent, how the principle has been recognised in the Inter-American Court of Human Rights and other relevant conventions that protect this right.
Session 6: Human Rights & Environmental Due Diligence
This presentation and Q&A will cover the obligations on businesses in relation to due diligence, the requirements to identify, prevent and mitigate risks, how to track down and understand corporate reporting on human rights, practical ways of identifying whether companies have fulfilled these requirements and when leverage could be used.
Guiding Principle 17 of the UNGPs states that businesses should carry out Human Rights Due Diligence in order to identify, prevent, mitigate and account for how they address their adverse human rights impacts. This should include assessing actual and potential human rights impacts, integrating and acting upon the findings, tracking responses, and communicating how impacts are addressed.
Guiding Principles 18 to 21 expand on principle 17, covering the key parameters of HRDD, how enterprises should identify the risks, integrate their risk assessments and what action they should take. Finally, businesses’ findings should be externally communicated and formally report on how they are going to address any severe or adverse impacts identified. This session will help participants better understand these processes and how to access relevant information to hold companies to account. It will also look at how these obligations apply and how they can be enforced when companies thatsub-contract to private companies.
Session 7: Redress and alternative remedies
This session will introduce a series of resources that can help guide decision-making when reviewing options for enforcing rights. We will discuss options for redress, the possible impacts of these options on communities and corporations, and the risks involved.
Legal action is a key way to hold businesses accountable, but is not the only way. Alternative dispute resolutions (ADR) can be used before, instead of, or alongside litigation in order to address human rights abuses and seek redress. Obtaining a court order is generally of little use unless it is enforced and implemented, so enforcement of court orders is an important issue.
In the face of many options of redress and ADR it can be difficult to see which is best. Negotiation, mediation or arbitration can be cheaper and quicker, less formal, and more confidential, but may be inadequate in the face of human rights abuses. In addition, the grievance mechanisms companies are obligated to have in place to deal with cases of perceived injustice may be effective avenues for remedy where the definitions and criteria used in these processes are understood and correctly applied by activists. This session will also look at what remedies may be sought when companies take unlawful displacement action against communities.