scholarly journals Business, Human Rights and Climate Due Diligence: Understanding the Responsibility of Banks

2021 ◽  
Vol 13 (15) ◽  
pp. 8391
Author(s):  
Chiara Macchi ◽  
Nadia Bernaz
Keyword(s):  
Climate Change ◽  
Human Rights ◽  
Corporate Responsibility ◽  
Research Question ◽  
Climate Change Impacts ◽  
Due Diligence ◽  
Business And Human Rights ◽  
Form Part ◽  
Normative Standard ◽  
Human Rights Due Diligence

Under the 2011 UN Guiding Principles on Business and Human Rights (UNGPs), banks, like all businesses, have a responsibility to respect human rights and to carry out human rights due diligence. Although climate due diligence is not explicitly included in the UNGPs, tackling an enterprise’s direct and indirect climate change impacts is arguably a dimension of the corporate responsibility to respect human rights and should form part of the human rights due diligence process. At present, it is unclear how such responsibility applies to banks, whose contribution to climate change is mostly indirect. This article addresses the research question: how should the law be interpreted to form a coherent climate due diligence standard for banks? To address it, the article first maps out the climate responsibility of banks under international soft law standards and assesses privately developed guidance. It then elucidates the emerging concept of climate due diligence, reading climate change responsibilities into the now well-established corporate responsibility to respect human rights as authoritatively elaborated in the UNGPs. Finally, it explains how such normative standard applies to banks and unpacks the key elements that a bank’s climate due diligence process should include.

scholarly journals The Climate Change Dimension of Business and Human Rights: The Gradual Consolidation of a Concept of ‘Climate Due Diligence’

2020 ◽  
pp. 1-27
Author(s):  
Chiara MACCHI
Keyword(s):  
Climate Change ◽  
Human Rights ◽  
United Nations ◽  
Business Process ◽  
Environmental Law ◽  
Holistic Approach ◽  
Due Diligence ◽  
Human Rights Law ◽  
Business And Human Rights ◽  
Human Rights Due Diligence

Abstract This article makes the case for a ‘holistic’ approach to human rights due diligence, arguing that such a standard must be interpreted in the light of mutually reinforcing principles of environmental law, climate law and human rights law. Through a review of emerging climate change-related litigation, it shows how a concept of ‘climate due diligence’ is gradually consolidating. Building on the United Nations Guiding Principles on Business and Human Rights, the article explores climate due diligence both as a standard of conduct and as a business process, presenting its main features. It argues that corporations should integrate climate due diligence into their processes and policies to be best prepared for likely regulatory and judicial developments, such as the upcoming European Union’s regulation on human rights and environmental due diligence.

Establishing a Corporate Responsibility Ombudsman: Enhancing remedy through state-based non-judicial mechanisms?

2021 ◽  
Vol 28 (1) ◽  
pp. 102-122
Author(s):  
Juho Saloranta
Keyword(s):  
European Union ◽  
Human Rights ◽  
Corporate Responsibility ◽  
Decision Makers ◽  
Sufficient Evidence ◽  
Export Credit ◽  
Due Diligence ◽  
The European Union ◽  
Credit Financing ◽  
Human Rights Due Diligence

This article assesses the efficiency of non-judicial grievance mechanisms in providing victims of corporate human rights violations with improved access to remedy. As no such mechanism is currently available, this article formulates a proposal for a new mechanism in the form of a corporate responsibility ombudsman, which would offer a great deal of flexibility as well as being an inexpensive, expeditious and informal manner of dealing with such issues. The article argues in favour of utilizing states’ regulatory arsenal to improve victims’ access to remedy extraterritorially. Based on recent international developments, I elaborate approaches to human rights due diligence regulation and export credit financing by means of two corporate responsibility ombudsman proposals. In relation to these proposals, I divide the effectiveness criteria of Principle 31 of the United Nations Guiding Principles into three main categories: empowerment, investigation and enforcement. Since obtaining sufficient evidence is of paramount to those seeking remedies for violations of corporate responsibility, states should bestow quasi-judicial powers on corporate responsibility ombudsmen to achieve efficiency, which could also create legitimacy. This article provides decision-makers and scholars with insights into how access to remedy could be synchronized with the momentum of human rights due diligence legislation in the European Union and beyond.

From a Stark Utopia to Everyday Utopias

2018 ◽  
Vol 60 (1) ◽  
pp. 575-606
Author(s):  
Michelle Staggs Kelsall
Keyword(s):  
Human Rights ◽  
United Nations ◽  
Transnational Corporations ◽  
Public Domain ◽  
Due Diligence ◽  
Karl Polanyi ◽  
Business And Human Rights ◽  
Human Rights Council ◽  
The United Nations ◽  
Human Rights Due Diligence

This article considers the emergence of the Business and Human Rights agenda at the United Nations (UN). It argues that the agenda can be seen as an example of the UN Human Rights Council attempting to institutionalise everyday utopias within an emerging global public domain. Utilising the concept of embedded pragmatism and tracing the underlying rationale for the emergence of the agenda to the work of Karl Polanyi, the article argues that the Business and Human Rights agenda seeks to institutionalise human rights due diligence processes within transnational corporations in order to create a pragmatic alternative to the stark utopia of laissez-faire liberal markets. It then provides an analytical account of the implications of human rights due diligence for the modes and techniques business utilises to assess human rights harm. It argues that due to the constraints imposed by the concept of embedded pragmatism and the normative indeterminacy of human rights, the Business and Human Rights agenda risks instituting human rights within the corporation through modes and techniques that maintain human rights as a language of crisis, rather than creating the space for novel, everyday utopias to emerge.

Creating a Human Rights Framework for Mapping and Addressing Corporate Tax Abuses

2019 ◽  
pp. 385-408
Author(s):  
Matti Kohonen ◽  
Radhika Sarin ◽  
Troels Boerrild ◽  
Ewan Livingston
Keyword(s):  
Risk Assessment ◽  
Human Rights ◽  
Two Dimensions ◽  
The State ◽  
Due Diligence ◽  
Corporate Personhood ◽  
Business Partners ◽  
Business And Human Rights ◽  
Corporate Decisions ◽  
Human Rights Due Diligence

This chapter identifies several areas of convergence between the fields of tax policy and human rights. These include the concept of the corporation as a unitary entity; the notion of extraterritorial impacts and obligations of states and corporations; and the risks of corporate personhood. These principles are all highly relevant to corporations’ human rights due diligence and risk assessment of their tax policies. Applying a business and human rights perspective to international tax law can clarify responsibilities of companies toward their other stakeholders as well as their relationship with subsidiaries and business partners in terms of responsible tax conduct. The chapter then explores two dimensions of the human rights impacts of tax-related corporate decisions: impacts mediated by the state and impacts not mediated by the state.

scholarly journals Risk-Based Due Diligence, Climate Change, Human Rights and the Just Transition

2021 ◽  
Vol 13 (18) ◽  
pp. 10454
Author(s):  
Claire Bright ◽  
Karin Buhmann
Keyword(s):  
Climate Change ◽  
Human Rights ◽  
Case Law ◽  
Mitigation Strategies ◽  
Climate Mitigation ◽  
Dual Function ◽  
Due Diligence ◽  
Environmental Implications ◽  
Adverse Impacts ◽  
Human Rights Due Diligence

Climate change has been described as one of the greatest threats to people and the planet. Its impacts affect virtually the entire spectrum of internationally recognised human rights as well as the environment in and of itself. In relation to human rights, there is a growing consensus that companies should exercise human rights due diligence in order to identify and prevent their actual and potential adverse impacts. However, the relevance and implications of the concept of the due diligence have not yet fully been analysed in relation to climate change. In this paper, we explore the concept of risk-based due diligence, which builds on the concept of human rights due diligence but extends it to other areas such as the environment. Through a review of recent regulatory developments as well as case-law and other grievances, we analyse the three facets of risk-based due diligence for climate change—prevention, mitigation and remediation. We consider both the short term as well as the longer-term human rights and environmental implications of companies’ climate-related impacts, as well as those resulting from the company’s contributions to the green transition. We argue that risk-based due diligence offers an under-explored but important dual function: providing the operational means through which companies can identify and address the climate-related human rights and environmental impacts with which they may be involved, whilst also taking into consideration the human rights implications of their climate mitigation strategies and contributions to the just transition.

scholarly journals Gender Component of Internal Displacement in Ukraine: A Case of Business (In)Capability to Localize Human Rights Impact Assessment

2022 ◽  
pp. 1-8
Author(s):  
Ganna Khrystova ◽  
Olena Uvarova
Keyword(s):  
Human Rights ◽  
Impact Assessment ◽  
Internal Displacement ◽  
Due Diligence ◽  
Critical Step ◽  
Business And Human Rights ◽  
Human Rights Impact Assessment ◽  
Human Rights Due Diligence

Human rights due diligence (HRDD) has become the buzzword of much of the advocacy and work today around business and human rights.1 It is almost commonplace that companies have the responsibility to identify, prevent, mitigate and account for how they address these adverse human rights impacts as part of their ongoing HRDD processes, in line with the UNGPs.2 The assessment of human rights impacts (HRIA) is a critical step in this process.3

scholarly journals Outlining the Case for a Common Law Duty of Care of Business to Exercise Human Rights Due Diligence

2016 ◽  
Vol 1 (2) ◽  
pp. 179-202 ◽  
Author(s):  
Doug CASSEL
Keyword(s):  
Human Rights ◽  
Common Law ◽  
The Other ◽  
Duty Of Care ◽  
Human Rights Violations ◽  
Due Diligence ◽  
Business And Human Rights ◽  
Other Hand ◽  
A Company ◽  
Human Rights Due Diligence

AbstractThis article outlines the case for a business duty of care to exercise human rights due diligence, judicially enforceable in common law countries by tort suits for negligence brought by persons whose potential injuries were reasonably foreseeable. A parent company’s duty of care would extend to the human rights impacts of all entities in the enterprise, including subsidiaries. A company would not be liable for breach of the duty of care if it proves that it reasonably exercised due diligence as set forth in the Guiding Principles on Business and Human Rights. On the other hand, a company’s failure to exercise due diligence would create a rebuttable presumption of causation and hence liability. A company could then avoid liability only by carrying its burden to prove that the risk of the human rights violations was not reasonably foreseeable, or that the damages would have resulted even if the company had exercised due diligence.

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