Liability of Private Actors in International Law

Abstract

This Chapter examines the legal status of private actors as potential duty-holders in international law and considers ideas and arguments brought forward to substantiate and further develop international environmental obligations for private actors. This task also requires to clarify whether and to what extent international human rights, from which such corporate duties could arise, demand the protection of the environment.

1 Introductory Remarks: Rights and Obligations in International Environmental Law and Legal Policy

This Chapter examines the legal status of private actors as potential duty-holders in international law and considers ideas and arguments brought forward to substantiate and further develop international environmental obligations for private actors. This task also requires to clarify whether and to what extent international human rights, from which such corporate duties could arise, demand the protection of the environment.

Public international law in its traditional Westphalian¹ form considers States as the original legal subjects and concerns individuals indirectly by means of an intermediation of rights and obligations via States.² This narrow understanding of international legal subjectivity has, however, evolved in many nuanced ways over the centuries. While States still are considered to be the normal or ‘natural’ legal subjects of international law, other international actors and, in particular, individuals are now recognized as derivative, limited, passive or sui generis subjects of international law.³ As such, individuals can now, under certain conditions, be subjected to obligations and/or enjoy rights in international law.

This is true, without reservation, for individuals as holders of human rights, which are the most important example of the partial international legal personality now assigned to private actors. In principle, this is the case also with respect to companies that, at least as far as they are established as legal persons under the national laws of one or more States, can rely on the legally recognized international rights that apply to those legal entities. Examples of such corporate rights are the right to property and protection against both expropriation and arbitrary treatment or procedural rights.⁴ The partial international legal subjectivity of corporations is also debated with respect to international investment treaties.⁵ The question of if and to what degree human rights not only protect ‘traditional’ rights but also fundamental needs and interests related to the environment, is, in contrast, still controversial.

As further discussed below, it is widely considered that international environmental law does not directly impose obligations on transnational corporations.⁶ It thus predominantly is seen to impose duties on the States to curtail the harmful activities of corporations operating from their territory to protect the global environment and the environment in other States. This importantly entails the obligation to provide for local enforcement mechanisms in relation to corporate violations of environmental law, either through criminal or civil liability law.⁷

Just as it is the case regarding State liability,⁸ legal obligations of private actors rather are recognised with respect to human rights law. The existence of international human rights obligations for transnational and multinational corporations, although certainly not yet commonly recognized, has been analysed and vividly discussed for the last 25 years.⁹ Furthermore, increasing efforts have been made to formally establish new ‘horizontal’ instruments for the protection of human rights in international law, which are meant to directly oblige transnational corporations towards individuals or groups as rights-holders. This discussion predominantly related to human rights now is relevant for this study if, and to the extent that a legally relevant connection between human rights and the goods and interests protected by environmental law is recognised. In other words, these debates raise the question of whether companies can violate their alleged human rights obligations by causing environmental damage: how far do human rights obligations imply the protection of environmental interests? Rapidly growing jurisprudence, as well as theoretical and policy-related debates, discuss the nature and the scope of the link between human rights and the environment.

This Chapter will try to do justice to these two variables of a human-rights-based approach to environmental protection. The first Subchapter gives a brief overview of the key debates on direct obligations for private actors in international law and then moves on to recent initiatives to establish corporate human rights obligations. The second Subchapter examines the equally vivid debates and dynamics regarding the relevant substance of potential human rights-based environmental obligations.

2 Private Actors as Duty Holders in International Law: Status Quo and Recent Initiatives

2.1 Direct International Obligations of Private Actors de lege lata?

For many years, scholars have examined a weakening of the existing classical State-centric approach in international law, which is seen to be moving away from the traditional view that, under human rights law, individuals hold rights while only States bear obligations.¹⁰ According to some, the present state of international law governing corporate human rights practices suggests that core human rights obligations already apply to corporations.¹¹

These scholars base this assumption essentially on two general arguments. On the one hand, they argue, that the “grudging acceptance”,¹² that some fields of international law already govern the activities of private juridical persons, also supports more general, doctrinal conclusions regarding general legal obligations of private actors. For these exemplary regimes of international law, authors refer to international criminal law but also to more recent developments, such as the General Comment prepared by the UN Committee on the Rights of the Child and the General Recommendation on gender-based violence against women adopted by the UN Committee on the Elimination of Discrimination against Women.¹³ Other examples of mandatory norms addressing corporations include international contractual agreements between corporations with respect to the terms and conditions used by those enterprises which regulate their obligations regarding human rights.¹⁴ In addition, ‘voluntary’ norms adopted by international and national governments, as well as by companies, are considered to actually include many binding rules of law because they incorporate human rights norms that are supposed to be, in fact, obligatory duties rather than voluntary undertakings.¹⁵ Observers have also diagnosed a “clear trend in the declarative practice of States towards extending responsibility for respecting human rights to private companies involved in the provision of private services” concerning international investment law:¹⁶ Current models of International Investment Treaties, such as the Indian Model Text for Bilateral Investment Treaties, allow for counterclaims brought by a State against an investor, for example, for a breach of the law relating to human rights. Investing enterprises could accordingly find themselves embroiled in an international arbitration proceeding for failing to respect human rights.¹⁷ On the level of such bilateral international treaties, individual States may be seen to deal with the implementation of direct legal obligations for private actors.¹⁸ Legal discourses on the more general implications of such developments may also lead to changes in international customary law, where contractual agreements do not stipulate explicit obligations of private actors.

Urbaser S.A. et al. v Argentina

In 2016, the investment arbitration tribunal in the case of Urbaser S.A. et al. v Argentina acknowledged the right of the host State to bring a counterclaim not anticipated by an investor and, what came to many as a surprise,¹⁹ affirmed the existence of obligations for investors in an unprecedented fashion.²⁰ Although the relevant Bilateral Investment Treaty (BIT), the Spain-Argentina BIT, did not explicitly stipulate the possibility of counterclaims, the tribunal took a less than traditional approach by rejecting the view that BITs do not impose obligations on investors²¹ and found that no provision in the BIT allows an inference that the host State does not have rights [to be pursued by a counterclaim] under it.²² In addition, the tribunal held that it had to ground its judgment in harmony with other rules of international law of which it is a part, including those relating to human rights.²³ Even more strikingly, and again contrary to the view of past tribunals which dismissed the international legal subjectivity of private investors, the Urbaser tribunal found that “if the BIT is not based on a corporation’s incapacity of holding rights under international law, it cannot be admitted that it would reject by necessity any idea that a foreign investor company could not be subject to international law obligations”. As investors are entitled to invoke rights resulting from the Spain-Argentina BIT’s, more concretely from its most favored nation clause, the investor could also be held to comply with obligations under international law. The Tribunal also derived the legal subjectivity of corporations drawing on CSR as a “standard of crucial importance”, which “includes commitments to comply with human rights in the framework of those entities’ operations conducted in countries other than the country of their seat or incorporation”. Given this recent development, the tribunal draws the conclusion that it “can no longer be admitted that companies operating internationally are immune from becoming subjects of international law”. ²⁴

A second, comparable argument claims that even agreements that explicitly address States and their duty to implement and enforce obligations of corporations do, in fact, also impose legal duties on enterprises. To make this point, scholars refer to agreements stipulating environmental obligations, e.g. the Convention on Transboundary Movements of Hazardous Wastes, which prohibits unauthorised movement of hazardous wastes undertaken by “any person”, or international civil liability conventions regarding environmental damage caused by enterprises.²⁵ According to these arguments, such treaties, although, their concepts may be “still very much influenced by the traditional paradigm of international law”, in fact demonstrate the willingness of States to impose responsibilities directly on corporations. The explicit wording of various international nuclear and environmental liability conventions, according to Peters, would allow for the assumption of direct international liability of private actors as these regimes directly, and with sufficient detail, address the obligations of private actors. The respective obligations would be appropriate for the direct application of local authorities and sufficiently clear and predictable for the obliged companies.²⁶ Suggesting, that international law does not impose responsibility on private entities, because enforcement can only be achieved by way of lawsuits in one or more States and which therefore excludes these regimes from the ambit of public international law, accordingly would confuse the existence of legal responsibility with the method of implementing and enforcing it.²⁷ The lack of international enforcement and the need for national action should thus not be mistaken for the absence of an international norm defining a binding standard.²⁸

Notwithstanding these arguments, the majority of authors writing on this subject cautiously maintain that corporations and other private actors, at least in principle, are not bound by obligations in international law. This holds with respect to the first argument of a generalisation of regime specific obligations of private actors. Accordingly, there is no necessary correlation between rights and duties under the doctrine of international legal subjectivity.²⁹ Even if legal subjectivity of private entities is acknowledged in specific contexts, subjects of law are not necessarily identical in their nature or in the extent of their rights.³⁰ With respect to the given legal situation, scholars thus oppose a generalisation of regime- or sector-specific developments. For example, they insist on a clear conceptual differentiation between individual and corporate liability and between criminal liability and ‘civil’ or ‘tortuous’ liability.³¹ The intricacies of accepting corporations as duty-bearers of human rights obligations are accordingly quite distinct from those permeating the international criminal law debate.³² The described dynamics thus may point to a gradual and selective change of the legal status of private actors. General obligations for private actors however have, at best, only embryonic support in customary international law.³³

The second argument aimed at providing a progressive interpretation of international regimes points to perspectives for the design of international treaties and even existing avenues for the implementation of the treaties by courts and institutions. For example, the evolution of (binding) primary norms in the practice of international treaty law may provide concepts and doctrinal levers to change national jurisprudence regarding secondary obligations of private actors.

The situation de lege lata, however, does not allow the conclusion that such direct duties already would exist. International agreements have to be clearly distinguished with respect to the explicit scope and the addressees of their obligations. In the practice of international and national liability law, a concept of direct responsibilities based on international environmental treaties has not yet materialised. Just as is the case with most other international regimes, obligations under these regimes, at least according to the legal status quo, are predominantly seen to directly address only States and possibly constitute State duties to implement liability regimes. They accordingly use the ‘traditional’ method to harmonise international civil law.³⁴ Treaties that establish corporate liability for environmental damage according to the predominant theory and practice do not impose obligations directly on the corporations but obligations on States to take measures to ensure the liability of legal persons engaged in the prohibited activities. Direct obligations of corporations and other businesses therefore still must be considered as domestic rather than international.³⁵

2.2 Soft-Law and Private Standards as a Basis for Transnational Corporate Accountability

While direct legal obligations of enterprises in international law are still an exception, numerous non-binding standards, initiatives and management systems exist with regard to responsible business conduct, ranging from overarching standards such as the OECD Guidelines for Multinational Enterprises³⁶ (OECD Guidelines) and the ISO 26000 Guidance on social responsibility to more specific sector-related initiatives such as the Extractive Industries Transparency Initiative (EITI) and the Fair Wear, Fair Trade and Fairmined Standards.

Such transnational and international norms, despite their non-binding character, should be taken into account by the inquiry into the international environmental accountability of businesses as they are practically, legally and politically significant. In line with the approach of this Chapter, we focus on the significant non-binding human rights norms in international law and briefly look at environmental soft law and private regulation. We want to illustrate that in soft law, similar to international law, there is potential for environmental and human rights standards to mutually strengthen and support each other. By sketching out the relevance of these standards for the law of inter- and transnational environmental liability, these considerations form a starting point for the more specific explanations on the issue in the next Chapters.

Non-binding Human Rights Due Diligence as a Global Reference Point for Businesses’ Transboundary Responsibilities

The UN Guiding Principles on Business and Human Rights (UNGPs),³⁷ developed between 2005 and 2011 under the mandate of the then Special Representative of the UN Secretary-General for business and human rights John Ruggie and unanimously endorsed by the UN Human Rights Council in 2011, are currently seen as the global authoritative, albeit non-binding, standard on business and human rights. They set forth a number of principles that aim to prevent, address and remediate human rights abuses committed in the context of global business operations. More concretely, they foresee businesses self-regulating their business conduct by acting with (human rights) due diligence.

The UNGPs have strongly influenced current debates and have informed both national strategies, business initiatives, other voluntary standards as well as binding regulations worldwide. For example, the OECD Guidelines and other relevant existing standards on responsible business conduct were amended by the addition of the concept of due diligence. New standards were also developed, including the OECD sectoral guidance on due diligence³⁸ or the OECD Due Diligence Guidance for Responsible Business Conduct³⁹ (OECD Guidance). An increasing number of due diligence regulations have been passed, such as the German Supply Chain Due Diligence Act (LkSG ),⁴⁰ the French Duty of Vigilance Law,⁴¹ the EU Timber Regulation,⁴² the EU Conflict Minerals Regulation⁴³ and the California Transparency in the Supply Chains Act.⁴⁴ A European Directive on due diligence in supply chains is being drafted at the time of writing this Chapter. Notwithstanding relevant divergences, the concepts of the UNGPs form the relevant model for national due diligence regulations. Important issues regarding a regulatory implementation of the UNGPs will be further discussed in Chap. 7. Here, it is sufficient to sketch out some general aspects of the UNGP’s concepts.

Firstly, the UNGPs importantly emphasise that corporations have an autonomous responsibility to respect human rights. The UNGPs differentiate between three normative pillars: (1) the State’s duty under international law to protect human rights (“protect”), (2) the corporate responsibility to respect human rights (“respect”) and (3) granting victims of human rights violations access to judicial and extrajudicial complaints procedures and grievance mechanisms (“remedy”). Under the second pillar, businesses “[…] should avoid infringing on the human rights of others and should address adverse human rights impacts with which they are involved” (principle 11, UNGPs).

The concept of human rights due diligence forms the core of the second pillar in that it foresees that companies self-regulate their business conduct. The UNGPs clarify that this responsibility exists independently of a State’s duty to protect human rights as well as over and above national regulations pertaining to the same, constituting a global standard of expected conduct, cf. commentary to principle 11, UNGPs. This is highly relevant as it makes clear that it is not sufficient for companies to monitor developments and follow the measures that States take.⁴⁵

Second, the UNGPs explicitly refer to existing international human rights treaties, specifying that businesses can have an impact on the entire spectrum of internationally recognised human rights. Their responsibility thus applies to all such rights (principle 12, UNGPs). While the UNGPs’ focus lies on human rights impacts, environmental and other types of harm have to be considered where they lead or may lead, to human rights abuses. Consequently, it is highlighted that businesses may not be able to discharge their responsibility to respect all internationally recognised human rights unless they integrate climate change considerations into their human rights due diligence processes.⁴⁶ However, the question of how this connection between the environment and human rights is concretely constituted has, so far, not been the subject of in-depth analysis in the context of the UNGPs.⁴⁷ The overarching discourse in international human rights law on this question, discussed in detail below, may be insightful also in the context of this Subchapter.

Thirdly, the UNGPs lay down both procedural and substantial requirements: The UNGPs, as well as the standards and regulations which build upon them (see above), foresee several steps or elements for businesses to identify, prevent, mitigate and account for how they address their adverse impacts on human rights. These are laid out in the standard’s so-called operational principles and encompass the duties for companies to (principles 16–22).

More concretely, companies are, first of all, expected to identify and assess their actual and potential human rights impacts. Such an assessment would typically include an analysis of the specific operating environment and the human rights context, the people affected, the relevant human rights issues as well as how the company’s activities relate to the latter. This type of assessment is considered crucial in that it informs all the subsequent steps of the due diligence process (principle 18). The assessment’s findings should subsequently be integrated across internal functions and operations by assigning responsibility in the corporate organisation and allocating the budget and personnel required to enable effective action (principle 19). The company should also track its actions’ effectiveness to verify if its policies are being adequately implemented and its measures effective in addressing adverse impacts, as well as for the overall purpose of continuous improvement. (principle 20). Lastly, businesses need to account for and communicate externally on how they address their human rights impacts towards (affected) internal and external stakeholders, such as employees, investors and business partners by implementing formal reporting procedures and the like (principle 21).

While obligations to “identify, prevent, mitigate and account for … adverse human rights impacts” refer to a concept of due diligence in a business practice sense as a “management process”,⁴⁸ the UNGPs also formulate a substantial standard. This means that they should avoid infringing on the human rights of others and should address adverse human rights impacts with which they are involved, principle 11. The UNGPs thus contain both procedural due diligence obligations (“due diligence as a process”) and a substantive standard of care, which requires a business to do what is necessary in individual cases to prevent concrete violations of human rights.⁴⁹

Fourth, the UNGPs clarify the comprehensive scope of due diligence: Current (non-binding) due diligence standards, such as the UNGPs, require companies, regardless of their size, sector, ownership or operational context, to address both the adverse effects caused by their own activities as well as those to which they contribute or to which they are directly linked to as a result of their business relationships. Activities are understood in this context as both actions and omissions, while business relationships include, but are not limited to, business partners and suppliers and apply to both non-State and State entities (principle 13, UNGPs). A company’s responsibility, therefore, extends across its entire value chain.

The fifth and final point to note is that the UNGPs’ due diligence obligations vary depending on the risks present and the companies’ leverage over them. While the UNGPs, in principle, concern all businesses, each business’ duties will vary and depend on factors such as the company’s size, its operational context, the severity and probability of the (potential) adverse impact and the company’s level of involvement. For example, smaller businesses may have more informal structures and less financial means than larger companies and so their actions may differ (principle 17, UNGPs). It has been convincingly proposed that the UNGPs formulate two different standards: a stricter standard of avoiding its own impacts; and a ‘leveraged standard’ that seeks to prevent others’ impacts. Guiding Principle 13 clearly distinguishes between the responsibility of a business to avoid causing or contributing to its own negative human rights impacts (13(a)) and the responsibility to seek to prevent or mitigate impacts by third parties (13(b)). Companies that cause or may cause an adverse impact are expected to cease, prevent and remedy the same, whereas if they contribute or may contribute to an adverse impact they should cease or prevent their activities that result in the impact and mitigate as well as remedy the impact according to their contribution. Where companies are or may be directly linked to an impact, they are not expected to remedy the same, instead, they should address the impact by using their leverage on the entity concerned (principle 17, 19, UNGPs).⁵⁰

The UNGPs also recognise that companies, especially if they have large numbers of entities in their value chains, are likely to be unable to address all their adverse impacts immediately and equally. They should therefore prioritise their efforts in relation to the severity and likelihood of the impact. When assessing an impact’s severity, both its scale, scope and irremediability must be considered.⁵¹ Determining the content and scope of a duty according to the seriousness of the imminent risks and rights violations, the likelihood of their occurrence and the company’s options to mitigate or prevent them corresponds to widespread legal principles, e.g. in torts. In modern supply chain legislation, these principles are summarised under the concept of the appropriateness of the required measures, cf. sect. 3(2) German LkSG.⁵²

Milieudefensie v Shell : The UNGPs as a Guideline for a Climate-Related Standard of Care

The legal significance and universal recognition of the UNGPs, as well as their potential relevance for cases of environmental liability are strikingly reflected by the judgment of the Hague district court in the case of Milieudefensie v Shell. In this ruling, the oil and gas company Shell, as a corporate group, was obliged to reduce its emissions across its entire value chain by 2030 and do so independently of any national regulations. This reduction obligation also applies to so-called ‘Scope 3 emissions’ which, for example, arise through the use of Shell’s products in cars and the like. Like the UNGPs, the court distinguished between different due diligence standards based on the company’s leverage: It ruled that the reduction obligation by 2030 represents a duty of result for Royal Dutch Shell itself and all its subsidiaries, including foreign subsidiaries. In contrast, a duty of conduct was assumed for ‘Scope 3 emissions’, i.e. for suppliers and emissions from the end product. In its ruling, the court had to interpret the unwritten standard of care in Dutch civil law and based this, among other things, on the UNGPs as an “authoritative and internationally endorsed ‘soft law’ instrument”. “For this reason, the UNGPs are suitable as a guideline in the interpretation of the unwritten standard of care. Due to the universally endorsed content of the UNGP, it is irrelevant whether or not [Shell] has committed itself to the UNGP.”⁵³

Another important standard in this context is set by the OECD Guidelines. While also legally non-binding, they form part of the OECD Declaration on International Investment and Multinational Enterprises which was first adopted by the governments of OECD member countries in 1976 together with the Guidelines. The OECD Guidelines address businesses that operate in a transnational context and set standards for responsible business conduct across a range of issues, including human rights, labour rights, taxation, corruption and the environment. Since their revision in 2011, they now also include the concept of due diligence and, more specifically, a chapter on human rights due diligence. Besides choosing a broader thematic scope, they equally require companies to address their entire value chain.

Notably, the OECD Guidelines establish a unique non-judicial grievance mechanism (NJGM). Adherent governments are required to set up a National Contact Point (NCP) whose main role is to further the effectiveness of the Guidelines by undertaking promotional activities, handling inquiries, engaging in furthering discussions and contributing to the resolution of issues that arise in connection to the implementation or non-observance of the Guidelines in specific instances.⁵⁴

NJGMs are considered to be a beneficial complement to judicial procedures. They may save time and costs on both sides and be more readily accessible for the person or group seeking a remedy. In addition, there can be positive effects inherent to the process, which is usually non-adversarial and instead relies on mediation, dialogue and relationship-building. Conflicts can, in theory, be addressed at an earlier stage to potentially prevent them or at least avoid escalation. Additionally, depending on the judicial system, the chances of the parties settling on an effective remedy may be higher. For one, legal proceedings can, under normal circumstances, last many years and fail to provide compensation or other forms of meaningful remedy in time, for example, when communities are evicted from their land. Cases involving communities or larger groups of individuals usually also require more complex solutions since interests, claims and grievances differ within the group or community itself. However, NJGMs have also been the subject of criticism, in particular with regard to their transparency, impartiality and effectiveness. ⁵⁵

Concerning the NCPs, it has been positively highlighted that some cases have been resolved in favour of the damaged parties or that a mediated agreement between both parties was agreed upon. As their institutional and financial backing also allows for continuous improvement the NCPs may, therefore, gain further relevance in future.⁵⁶At the same time, they have been criticised over their alleged lack of impartiality, i.e. being somewhat pro-business and other issues involving case handling procedures, which renders them largely ineffective. ⁵⁷ A report by OECD Watch found that “the NCP system continues to be largely inaccessible, unpredictable, and unable to facilitate effective access to meaningful remedy for victims of irresponsible business conduct. NCPs operate with highly variable organisational structures and rules of procedure and handle cases in very different ways, making it difficult for complainants to know what to expect.” More specifically, in 2018, only 9 percent of all cases filed reached an agreement, with a third being rejected immediately without any opportunity to go to the mediation stage. Only two cases filed by communities or NGOs resulted in some form of remedy for the complainants, however, even in these cases the remedy applied was far short of what was sought by the damaged parties. With regard to remedies applied, one case resulted in a mere acknowledgement of wrongdoing by the company involved, while in another case, the company concerned simply committed to improving their policies in the future. Both of these cases were handled by the Dutch NCP.⁵⁸

The reasons for the NCPs ineffectiveness are attributed to, among other factors, their lack of regard for the OECD Guidelines for complaint-handling, an overly strict approach to admitting cases in the initial assessment state, delays resulting from poor case management, restrictive policies on transparency and confidentiality, an unwillingness by certain governments to sanction non-participation in the mediation process, and non-fulfilment of recommendations. The report urges to revise the OECD Guidelines, the procedural guidance and the rules governing the functioning of the NCPs. Governments adhering to the OECD Guidelines should, in turn, ensure an organisational set-up conducive to impartiality, provide sufficient resources, ensure accessibility (e.g. promotional activities), enhance predictability (e.g. clear timelines), protect complainants from threats and strengthen sanctioning for non-compliance by businesses, among other things.⁵⁹

International Responsibilities of Private Actors in Soft Law and Private Standards: Potentials and Challenges of Voluntary Standards

Non-binding norms and standards also play a major role for TNCs independently of their human rights obligations. A number of international environmental regimes, including the Sustainable Development Goals and the Paris Agreement on climate change, rely on soft law requiring voluntary action, wide-ranging provisions for participants and non-binding commitments, but do not include sanctioning mechanisms.⁶⁰ Soft treaties and other forms of soft law are praised to be more flexible and adaptable and to allow for greater and more diverse participation than ‘hard law’. In addition, soft law may avoid some of the obstacles that can prevent the adoption of binding treaties while leaving open, and even facilitating, the possibility that soft-law commitments may later become part of ‘hard’ treaties or customary international law.⁶¹

‘Soft’ and ‘hard’ law instruments can both be rather abstract and, importantly, do not always ensure that monitoring, measuring, reporting and verifying of the implementation and compliance with the stipulated norms and standards is or has taken place. A great number of private norms and standards, such as industry initiatives or certification schemes are accordingly seen, in principle, to be able to help manage such governance gaps.⁶² For example, it has been observed that capacity deficits on the part of the public sector have led to a ‘Cambrian explosion’ of transnational institutions, standards and programs focused purely on the mitigation of carbon emissions.⁶³ The increasing relevance of ‘soft’, often private norms and standards is not only true in the field of climate protection. A growing proportion of global production in agriculture, forestry, electronics and other industries, such as mining,⁶⁴ comply with voluntary sustainability standards.⁶⁵ Such standards are used to govern risks in global supply chains and can play an important role in international business transactions and investment decisions.

Potentially, private norms and standards may complement, concretise and thereby support social and environmental norms or sustainability goals issued by governments and international organisations.⁶⁶ An approach to support and/or develop non-binding standards (of environmental) care may be regarded as promising given that it could help to cope with the great complexity of transnational environmental problems. Technical standards, regional or sector-specific standard-setting could, in principle, contribute to the evolution of norms that help manage this complexity. In addition, the fact that rules are not legally binding does not mean that they are legally irrelevant. As mentioned above, and as will be discussed in more detail in Chaps. 6 and 7, private standards and/or conformity assessments can play a role in defining and assessing legally binding environmental and human rights obligations of companies. They also can play such a role in individual cases, e.g. when private certificates are being used by authorities to prove relevant standards and facts when enforcing regulations. Where the liability of German companies for human rights violations in the supply chain is concerned, for example, private standards and certificates can substantiate the assumption of negligence in individual cases and/or be of importance in proving breaches of duty in civil proceedings.⁶⁷

To fulfil such a role, however, a high degree of reliability of private standards and corresponding conformity assessment mechanisms must be established. Authorities and courts must therefore determine that standards are appropriate because they, for example, correspond to the state-of-the-art, and that conformity assessments are reliable. In many cases, private standards do not meet these requirements. Frequently , it may be difficult to establish a uniform normative benchmark against which the reliability and validity of industry standards, indicators or metrics for compliance with sustainability goals could be measured. Industry and sector-specific standards are often highly diverse and fragmented,⁶⁸ while private standards and conformity assessments are criticised for being under-ambitious, representing the lowest common denominator rather than seeking to apply demanding environmental standards. Furthermore, it has been noticed that the willingness to adopt a soft law instrument is high when the gap between the standards of the instrument and a company’s current situation is minimised, resulting in the company having to make limited efforts and face reduced costs to fully comply with the standards.⁶⁹

The deficits of private standards on the one hand, and their factual relevance for the governance of transnational enterprises on the other, substantiate the need to engage in regulatory intervention in this field. Consequently, for example, the European Commission has passed its Standardization Strategy in 2022, which aims at establishing and promoting international norms and standards, which not only deal with technical components but also integrate core EU democratic values and interests, as well as green and social principles. Given the potential relevance of private standards and conformity assessments to discharge a company’s legal obligations, e.g. in liability cases before national courts, national regulation could also constitute a lever to improve the quality and effectiveness of such standards. This inevitably raises the question of how national legislation, which defines these obligations, could proactively exert influence by defining the features necessary to prevent liability.⁷⁰

One option for both approaches, namely using national regulation as a lever to influence private standards and proactive regulation of the transnational structures and processes of transnational standardization, is the further integration and refinement of human rights and environmental due diligence. Previous research has shown that concepts and procedures of human rights due diligence are well-suited to integrating environmental requirements. Voluntary environmental management systems, such as ISO 14001, exhibit many parallels to the procedures envisaged by the UNGPs and require, for example, that companies consider environmental impacts over the entire life cycle of their products and services, and not just at their individual sites, in their environmental management. For this reason, it has been suggested that environmental management systems be integrated into due diligence processes. Such synergies could be strengthened by adding environmental concerns to international standards of human rights due diligence utilising increased collaboration with standardisation organisations and environmental advocacy groups, which are still less involved in discourses on due diligence than their counterparts in the fields of human or labour rights.⁷¹ Environmental and human rights due diligence procedures in this sense could, in turn, be integrated into national due diligence regulation. Such laws, and the institutional procedures for their enforcement, thus could establish criteria for using private transnational standards and initiatives to demonstrate compliance with mandatory due diligence and thereby, at least in theory, create an incentive to improve private environmental standards.

2.3 Current Initiatives: Binding Human Rights Obligations of Transnational Corporations?

The legal status quo, with no general and few specific legally binding international obligations of private enterprises, may change. The legal qualification as a subject of international law is not necessarily reserved for certain categories of actors in the international system as there exists no numerus clausus of legal agents in the current international legal order.⁷² International agreements could thus prescribe direct obligations on private actors; legal practice and opinio iuris may evolve and extend both the scope and addressees of international norms. With respect to human rights law and its environmental implications, many authors argue that the factual changes in the international world order must lead to the imposition of international obligations directly on non-State actors, which would then be held accountable for any violations of these rights along with the relevant States.⁷³ The issue of potentially evolving new environmental obligations in international customary law, which may also be based on the analysis of international civil liability conventions, will be further reflected on in Chap. 5. However, it seems appropriate to briefly detail two recent initiatives to establish general obligations of private actors in international treaty law here.

UN HRC Resolution 26/9

The first relevant initiative is Resolution 26/9, which was passed by the UN Human Rights Council in June 2014. The resolution created the United Nations’ open-ended intergovernmental working group on transnational corporations and other business enterprises with respect to human rights. The working group has the mandate to elaborate a legally binding instrument to regulate, in international human rights law, the activities of such private entities. In contrast to existing private or soft-law instruments to strengthen corporate responsibility for human rights violations, the mandate aims at a binding inter-governmental instrument that would be part of international law. De Schutter identifies four options the open-ended intergovernmental working group may consider: (i) to clarify and strengthen States’ duty to protect human rights, including extraterritorially; (ii) to oblige States, through a framework convention, to report on the adoption and implementation of national action plans on business and human rights; (iii) to impose direct human rights obligations on corporations and establish a new mechanism to monitor compliance with such obligations; and (iv) to impose duties of mutual legal assistance on States to ensure access to effective remedies for victims harmed by transnational operations of corporations.⁷⁴

Negotiations on the instrument are ongoing, however, the preliminary results clearly indicate the direction of the process. In its first sessions and drafts, the working group seemed to focus on quite radical solutions with respect to its major tasks. In the “Elements for the draft legally binding instrument on transnational corporations and other business enterprises with respect to human rights”, ⁷⁵ published in September 2017, (hereafter: “Elements”) the working group considered regulatory options “to put an end to impunity in cases of violations or abuses of human rights that occur in the activities performed by TNCs [transnational corporations] and OBEs [other business enterprises]”, see Elements, 5 “Legal Liability”. While the responsibility of the States to implement legal liability was a central focus of the text, the draft explicitly addressed corporations and formulated the fundamental “responsibility of TNCs and OBEs to respect all human rights, regardless of their size, sector, operational context, ownership and structure” (cf. Principle 5 of the Elements) and their obligations “wherever they operate and throughout their supply chains” (3.2. of the Elements). At the same time, the Elements emphasised, that “not only national institutions [are] in charge of the promotion and protection of human rights” and considered international judicial mechanisms such as an “International Court on Transnational Corporations and Human Rights”.⁷⁶ De Schutter plausibly suggested that such a mechanism would be feasible in a new treaty: By ratifying such an instrument, a State “would express its consent to a new monitoring mechanism applying directly to the TNCs under its jurisdiction: where it is alleged that a human rights violation has been committed by a corporation, that state would agree that the corporation itself would have to respond to such allegations before an international mechanism unless the violation has been addressed either by the internal grievance mechanisms of the corporation concerned or through legal remedies available within the state concerned”.⁷⁷

The subsequent drafts, the ‘zero draft’ of the binding instrument⁷⁸ as well as the ‘revised drafts’⁷⁹ turn away from more radical disruptions to the traditional view of international legal subjectivity. In contrast to the “Elements”, the drafts do not explicitly address obligations of corporations and other business enterprises but focus on the obligations of States. In its preamble, the revised draft stresses that “the primary obligation to respect, protect, fulfill and promote human rights and fundamental freedoms lie[s] with the State, and that States must protect against human rights abuse by third parties, including business enterprises, within their territory jurisdiction, or otherwise under their control, and ensure respect for and implementation of international human rights law”.⁸⁰ The drafts still underline the duty of enterprises to respect human rights in their preambles and may thus be read as aligning with the argument that obligations which, although not regulated by the instrument itself, still do exist.⁸¹ In its substance, however, they coincide with the archetype of international law dealing with non-State conduct indirectly, namely through the intermediation of required domestic law and State action.⁸²

Consistent with its State-centred focus, the drafts aim at concretizing and consolidating extraterritorial obligations of the States with respect to corporate human rights abuses.⁸³ They stipulate, for example, that State Parties “shall regulate effectively the activities of all business enterprises domiciled within their territory or jurisdiction, or otherwise under their control, including those transnational corporations and other business enterprises that undertake activities of a transnational character” and shall require business enterprises to undertake adequate human rights due diligence, Article 6. In doing so, the more recent draft treaty texts clearly reference the UNGPs’ concepts of corporate human rights due diligence.⁸⁴ In addition, the treaty, if adopted, would also contain the obligation to establish a liability regime that is also effective across borders. Article 8.1 of the third revised draft stipulates that States “shall ensure that their domestic law provides for a comprehensive and adequate system of legal liability of legal and natural persons conducting business activities, within their territory, jurisdiction, or otherwise under their control, for human rights abuses that may arise from their own business activities, including those of transnational character, or from their business relationships.” Article 7.1 requires States Parties to endow their domestic courts ‘with the necessary competence […] to enable victims’ access to adequate, timely and effective remedy’. As an exception to the lex loci damni rule, which de lege lata primarily applies in transnational tort litigations,⁸⁵ Article 11.2 provides that, upon request of the victim, matters of substance may be governed by the domestic law of the home-State court.

The Draft Global Pact for the Environment

In a second noteworthy development, the Draft Global Pact for the Environment, which, as will be further outlined below, included a formulation of a right to a decent environment in its Article 1, explicitly incorporated a correlative “duty to take care of the environment” in its Article 2. The consolidation of the general duty of care for the environment in international law, as Francioni explains in some detail concerning the draft, aimed at strengthening “objective eco-standards” in international law.⁸⁶ The integration into a binding instrument was supposed to support the further implementation of environmental principles that may be derived from a general duty of care, such as the principle of prevention of harm.⁸⁷ An environmental duty of care should be understood in the sense of an obligation towards the environment as autonomous value of the international community, worth of protection in itself. It further was considered to be able to trigger the evolution of the duty of care which transcends the traditional conception of environmental protection framed in a spatial horizon, that is territory and spaces beyond national jurisdiction, to a contemporary conception of global environmental goods.⁸⁸

Importantly, this duty of care for the environment now was supposed to be imposed not only “on “[e]very State or international institution”, but also on “every person, natural or legal, public or private”, Article 2 Draft Global Pact for the Environment. The draft was thus seen to propose a broad formulation to guarantee a wide obligation⁸⁹ as it suggested to expand the spectrum of duty-bearers⁹⁰ and followed a “very progressive stance” indeed, especially given the state of scientific discourse and opinio iuris explicated above.⁹¹ The comprehensive formulation of the duty of care was seen to be particularly innovative because of this potential ‘horizontal’ application to non-State entities, such as transnational corporations.⁹²

As will be further outlined below, the open-ended working group tasked with examining the draft’s proposals regarding substance and implementation as a new international treaty, ultimately abandoned the idea of a binding instrument. In accordance with the recommendations of the working group, the General Assembly agreed “to forward these recommendations to the United Nations Environment Assembly for its consideration, and to prepare […] a political declaration for a United Nations high-level meeting, subject to voluntary funding […] with a view to strengthening the implementation of international environmental law and international environmental governance” in its resolution 73/333, adopted on 30 August 2019.⁹³

3 Private Actors as Rights-Holders in International (Environmental) Law: Substance of a Human Rights-Based Approach

The link between human rights and the environment has long been debated. It was first suggested by the Stockholm Declaration on the Human Environment in 1972 which stated in its Principle 1 that “Man has the fundamental right to freedom equality and adequate conditions of life, in an environment of quality which 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.” Despite the considerable evolution of this concept,⁹⁴ both its nature as well as the substance and scope of the connection between human rights and the environment, is still being dynamically developed. With respect to the nature of the relationship, three major approaches may be analytically distinguished. These approaches do not necessarily exclude one another,⁹⁵ priorities regarding one approach or another can, however, have different implications for the question of if individuals possess subjective rights with respect to environmental damage.

First of all, the relationship between the environment and human rights can be understood in a narrow sense, considering the obligations of States or other duty-holders to protect the environment as a potential implication of “traditional” human rights impaired by a lack of protection. Substantially, environmental pollution or harm can lead to the violation of human rights, such as the rights to life, health or property. Such rights violations are straightforwardly associated with the possibility of taking legal action and various claims of this sort have been legally recognised in a large number of international human rights litigations, e.g. before the European Court of Human Rights.⁹⁶ A ‘narrow view’ in this sense may also indicate that a healthy environment and environmental protection, even where traditional human rights are not concerned, is an objective of the State. Environmental protection in this sense can be seen as an existential precondition for the realisation of human dignity as well as the right to life, health and food, and should, as a policy goal, guide State action but may not necessarily be considered to be justiciable as a subjective legal claim. Environmental protection as a State-objective can still become relevant in legal disputes, prominently, because the protection of the environment is considered to be a legitimate aim justifying interference with certain individual human rights.⁹⁷ From such a point of view, human rights have to be clearly distinguished from environmental interests but can still be seen as indispensable yardsticks for government policies to shape the process of sustainable development in a just manner.⁹⁸ Legally, the protection of the environment in the sense of a State objective is, for example, set out in Article 20a of the German Basic Law.

Second, from a procedural perspective, rights such as access to information, participation in public affairs and access to justice are key to securing governance structures that enable society to adopt fair decision-making processes concerning environmental issues.⁹⁹ This approach thus emphasises the possibility of using (procedural) human rights to achieve adequate levels of environmental protection.¹⁰⁰

A third approach aims at substantially integrating human rights and environmental protection: This integration can be made in accordance with a view focusing on State or policy objectives where concepts of sustainable development highlight that societal objectives must be treated in an integrated manner concerning economic, environmental and social justice issues.¹⁰¹ An integrative approach, however, may also conform to a rights-based strategy¹⁰² to environmental protection: An increasing number of national constitutions and international instruments recognise a human right to a healthy environment. The recognition of such a right is supposed to significantly intensify the legal link between the environment and human rights.

3.1 The Narrow View: Environmental Damage as Violation of Existing Human Rights

“Greening” Existing Human Rights

Traditionally, many international human rights treaties have not included a specific reference to the environment.¹⁰³ However, for some time now treaty bodies, regional tribunals, special rapporteurs and other international human rights bodies have, to varying degrees,¹⁰⁴ pursued a jurisprudential approach of ‘greening’ traditional human rights.¹⁰⁵ According to many observers, this process has been quite successful, creating an extensive jurisprudence on human rights and the environment.¹⁰⁶ The interpretation of existing human rights norms with regard to environmental rights or basic needs can, for example, be observed in the extensive environmental jurisprudence of the European Court of Human Rights: Environmental harm, according to the Court, interferes with the full enjoyment of a wide spectrum of human rights. It has been held that very diverse kinds of environmental damage can undermine the rights to life (Article 2 of the Convention), the prohibition of inhuman or degrading treatment (Article 3 of the Convention), the right to liberty and security (Article 5 of the Convention) and the right to respect for private and family life and home (Article 8 of the Convention).¹⁰⁷

TĂTAR v ROMANIA (2009)

In Tătar v Romania before the European Court of Human Rights, the claimants, a father and son, alleged that the technological process used by a company in their gold mining activity put their lives in danger as part of the company’s mining activity was located close to the claimants’ home. In the year 2000, a dam breached, releasing approximately 100,000 m³ of cyanide-contaminated tailings water into the environment. The applicants also complained of inaction on the part of the authorities regarding numerous complaints lodged by the first applicant about the threat to their lives, to the environment and his asthmatic son’s health. The Court found a violation of Article 8 of the European Convention of Human Rights and determined that the authorities had failed in their duty to assess the risks of the mining operation and to take suitable measures to protect the rights of those concerned. It recalled in particular that pollution could interfere with a person’s private and family life by harming his or her well-being.¹⁰⁸

An extensive ‘mapping project’ on the issue of human rights obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment carried out on behalf of the UN Human Rights Council has claimed to provide “overwhelming support” for the assumption that environmental damage can have both direct and indirect negative implications for the effective enjoyment of a wide range of human rights. For example, it describes the international obligations of States to protect the right to life from the risk of nuclear disaster and other environmental pollution and that States as well as many other sources, including the Human Rights Council, the Committee on Economic, Social and Cultural Rights, the African Commission and the European Committee of Social Rights, have all identified environmental threats to the right to the enjoyment of the highest attainable standard of physical and mental health. Citing reports and legal opinions commissioned by States and international institutions, the UNHCR report also describes the legal implications of climate change for a wide range of rights, including the rights to health, water, food and others, before specifically highlighting the right of self-determination for peoples living in small island States.¹⁰⁹ Similar approaches to addressing such issues are practically relevant in many respects. For example, observers have diagnosed a strong trend towards encouraging States to take actions to protect against transboundary harm impacting human rights caused by actions under their jurisdiction or control. Moreover, it is seen to be clear that States have an obligation to cooperate internationally with respect to human rights, which is of particular relevance for global environmental threats such as climate change.¹¹⁰

From these mapping projects, the then Special Rapporteur on the issue of human rights obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment, John Knox, concluded that there remained a need to clarify the relationship between human rights and the environment. A first consequence was drafting the Framework Principles on Human Rights and the Environment.¹¹¹ These principles are not supposed to create any new obligations but are intended to reflect the main existing human rights relevant to the environment, to facilitate their practical implementation and further development, helping to ensure that they “continue to develop in a coherent, consistent and integrated manner”.¹¹² Given that the “intrinsic link” between the environment and a wide range of human rights¹¹³ is widely accepted and the existing instruments are already being practically used¹¹⁴ some however argue that “there is little to be said in favor of simply codifying the application of the rights to life, private life and property in an environmental context” and that “making explicit in a declaration or protocol the greening of existing human rights that has already taken place would add nothing and clarify little”.¹¹⁵

Implications of a Narrow View for the Legal Protection of Environmental Rights

This argument may be disputed from a practical point of view as the knowledge of State agents, as well as of private actors, about the effects of environmental damage on human rights may, in fact, often be limited. The recognition and clarification of the substantial connections between ‘traditional’ human rights and the environment in any given case however do not imply that major questions in legal doctrine concerning the implications of environmental damage for human rights would be resolved.

A narrow view of the connection between human rights and the environment rather entails considerable gaps for rights-based strategies undertaken to improve environmental policies. More specifically, the current human rights framework is not unequivocally well-equipped to deal with environmental degradation and its diffused effects on communities and societies and has a blind spot regarding the intrinsic linkages between the individual and the collective interests of society.¹¹⁶ This can be the case where damage, such as “pure environmental damages”,¹¹⁷ are seemingly unrelated to direct impacts on human rights and interests. Problematic gaps for judicial protection have also emerged where human rights violations were evident but affected not only certain individuals in particular but a large number of citizens in a similar way.

The Cases of Kyrtatos v Greece and the People’s Climate Case

In Kyrtatos¹¹⁸ the ECtHR reiterated that none of the articles of the Convention are specifically designed to provide general protection of the environment as such. The claimants relied on Article 8 of the ECHR, namely the right to respect for their private and family life, their home and their correspondence, and complained that urban development had destroyed the swamp adjacent to their property and about other environmental pollution. The Court noted that severe environmental pollution could affect individuals’ well-being and prevent them from enjoying their homes in such a way as to affect their private and family life adversely. However, the Court could find no violation of the applicants’ right to private life or enjoyment of property arising out of the destruction of the area in question. The crucial element for the violation of the rights in Article 8 was the existence of a harmful effect on a person’s private or family sphere rather than the general deterioration of the environment.¹¹⁹

This reasoning reveals a narrow view on the interrelations of human rights and the environment and is also reflected by a decision of the General Court of the European Union which dismissed the claim of 10 families from Portugal, Germany, France, Italy, Romania, Kenya, Fiji and the Swedish Saami Youth Association Sáminuorra. The claimants sued the European Parliament and the Council of the European Union for the inadequacy of the EU’s climate target, which they consider to be too low to prevent the worst of the climate crisis and thus failed to protect their fundamental rights of life, health, occupation and property. The Court acknowledged that “every individual is likely to be affected one way or another by climate change” but dismissed the case by arguing that the 10 families and the Saami Youth Association are not allowed to challenge the EU’s climate policies in court since they are not sufficiently and directly affected by these policies (“direct and individual concern”). ¹²⁰ On March 25, 2021, the European Court of Justice (ECJ) upheld the General Court's order and held the plaintiff's claims inadmissible on standing grounds for failing to demonstrate that they were individually impacted by EU climate policy.¹²¹

This narrow view thus has procedural as well as substantive implications. Procedural rules may radically diminish the potential of rights-based strategies¹²² to improve environmental policies by not admitting human rights claims in the first place. Just as in the Court’s decision in People’s Climate Case, limited, indirect or gradual impacts on human rights have been repeatedly considered to be insufficient for the admissibility of legal action. Even if, such as in the case of severe systemic environmental degradation or climate change, it hardly can be disputed that the human rights of the plaintiffs will be affected in one way or another, courts may thus not even get to the point to where they need to balance these affected rights, the risks and intensity of their potential infringement against the legal or economic interests which may be opposed to a State’s preventive measures. ¹²³

The difficulties to invoke links between environmental damage and potentially very serious, but indirect or still uncertain, violations of existing human rights can be ascribed to the self-restraint of human rights courts to intervene in the tasks of the legislator, or more positively, out of respect for the general division of powers. This self-restraint also has substantive implications. Importantly, the ECtHR emphasises that it considers national authorities as the entities best placed to strike a fair balance between the interests of the individuals affected by environmental problems and that of the community as a whole and, for this reason, affords States a wide margin of discretion.¹²⁴

Claims are also frequently rejected by the courts when plaintiffs assert a State’s duty to protect their human rights in the face of potential future violations. Human rights courts, as well as constitutional or administrative courts, in principle, acknowledge a duty to protect human rights, such as the right to life or physical integrity, however, they are often reluctant to determine that the omission of an action infringes this duty. The simple existence of a risk of future damage is often not seen to equate to an infringement of subjective rights. Even if possible infringements are acknowledged, courts concede a wide margin of appreciation to States when cases concerning a duty to protect are at stake.¹²⁵ Only under certain circumstances can this margin be narrowed down in such a way as to warrant a declaration that a certain measure of protection be taken.¹²⁶

In cases involving potential future environmental damage, the question of whether there exists an obligation to prevent this damage is often considered as an issue that entails weighing objective interests rather than being concerned with subjective rights. According to such an understanding, the prevention of environmental damage, even if it affects the existential living conditions of citizens, primarily concerns a political obligation of the legislator. Such a view can be quite relevant for the application and interpretation of the law by courts and officials. However, in such cases, citizens have no environmental legal positions that could be individually enforced. Awarding environmental interests without a direct and imminent connection to life, health or property—(only) an objective status of political or ‘objective’ constitutional goals, ¹²⁷ may seem prima facie plausible with respect to democratic principles and the separation of powers and leads to old but still difficult to answer questions.¹²⁸ It implicates however, as Boyle convincingly points out, a structural debility of such interests of environmental common goods towards contrary interests, which are usually backed by subjective rights: Lacking the status of an independent right may imply that the goals of environmental protection can be trumped by those values which have that status, including economic development and natural resource exploitation.¹²⁹ The doctrinal debate about progressive complementation or reform in international environmental rights, therefore, concentrates on filling the gaps in international human rights law: These efforts focus firstly on intensifying the link between subjective rights and the environment, prominently concerning procedural rights and the recognition or codifications of the right to a decent or healthy environment. Secondly, and as explicated above, these endeavours aspire to broaden the scope and the addressees of human rights obligations.¹³⁰

3.2 Procedural Environmental Rights

In general, three basic procedural rights can be distinguished: first, the access to environmental information, second, public participation in decision making, and third, access to justice and remedies, e.g. in the event of environmental harm. Other than substantive obligations, which are concerned with obligations of conduct, procedural environmental rights and obligations are concerned with the observance of certain procedures related to the conduct of activities that may cause environmental harm.¹³¹ These rights are supposed to serve as a guarantee of rights to the environment, as a tool to increase participatory democracy and active involvement of the public in environmental protection and, something that is of specific interest in the context of this study, as an effective instrument of monitoring compliance with and enforcement of environmental law.¹³² The first comprehensive formulation of the concept in international law was made by the 1992 Rio Conference on Environment and Development, including in Principle 10 of the Rio Declaration, a clear mandate for the States with respect to the three procedural rights.¹³³ The binding international standard in relation to procedural environmental rights was set with the adoption in 1998 of the UNECE Convention on access to information, public participation in decision making and access to justice in environmental matters in the city of Aarhus (Aarhus Convention).¹³⁴ International environmental agreements adopted since then have increasingly focused on, or at least contained, procedural environmental rights¹³⁵ and there is considerable ongoing political and scientific interest in the matter.¹³⁶

The adoption of procedural environmental rights, according to some, constitutes the most important environmental addition to human rights law since the 1992 Rio Declaration on Environment and Development.¹³⁷ Their adoption can be seen as a particular reflection of a rights-based strategy being employed in environmental legal policy as described above,¹³⁸ a strategy that focuses on those rights whose enjoyment could be considered a prerequisite to effective environmental protection.¹³⁹

The discourse about procedural environmental rights thus reflects many issues related to this study. However, here it seems sufficient to highlight three key potentials that are associated with such rights.

First of all, access to justice is considered an especially impactful and, in some contexts, quite “novel tactic of mounting pressure” by which not only individuals but also NGOs and other members of the public push national adjudicating bodies to hold governments accountable for environmental damage and/or mounting threats to individuals, the climate and the environment at large.¹⁴⁰ Specifically, the legal standing of members of the public is seen to be capable of overcoming the traditional procedural obstacles to environmental litigation.¹⁴¹ The Aarhus Convention accordingly is of major importance because, unlike human rights treaties, it provides for public interest activism by NGOs insofar as claimants with ‘sufficient interest’ are empowered to engage in public interest litigation, even when their own rights or the rights of victims of a violation are not at issue.¹⁴² In this regard, procedural rights, and specifically access to justice for members of the public, allow the reformulation of the protection of environmental interests as legal questions, which is a perspective those who seek to ‘green’ existing human rights often do not take into account.¹⁴³ Environmental NGOs, for example, may step in as effective ‘guardians’ of endangered species that require additional recovery measures to stave off imminent extinction.¹⁴⁴ Given the potential effectiveness and political implications of ‘public interest litigation’, the definition of the criteria members of the public have to meet to have standing is both a relevant and disputed question.¹⁴⁵

Secondly, scholars highlight the interaction and reciprocal development of procedural rights, such as access to justice for victims of environmental damage or NGOs and substantial environmental rights. Access to justice, such as in instances of climate change litigation, may thus prompt the deployment of human rights litigation techniques and is expected to be secured through greater interaction between human rights and environmental law.¹⁴⁶ For example, it is held that further development and use of procedural rights will not only provide opportunities to protect environmental rights but can also further the development of a substantive right to a clean environment.¹⁴⁷ Specifically, access to justice is, even though it implies strictly procedural obligations, regarded as a means towards the end of protecting the individual's substantive right to a healthy environment.¹⁴⁸ The proceduralisation of rights, it is presumed, serves as a substitute for the contentious recognition of any substantive right to the environment.¹⁴⁹

Third, this reciprocal evolution of procedural norms granting access to justice and substantive environmental law is also considered to link diverse national and international legal orders: Procedural environmental rights are seen to foster the implementation of international environmental obligations by national courts.¹⁵⁰ For example, national courts’ engagement with international (environmental) law is considered to be not only required to shore up the principle of access to justice in (environmental) matters. It is also supposed to be beneficial for upholding the international and domestic rule of law as a claimant can present an argument using all the relevant legal bases once access to justice is granted.¹⁵¹

Urgenda Foundation v State of the Netherlands

The judgment of the Dutch Court of Appeal of the Hague¹⁵² in the case of the State of the Netherlands v Urgenda Foundation is insightful concerning the potential of procedural rights in a number of ways. The court confirmed a previous ruling¹⁵³ and found that the State had acted negligently and, therefore, unlawfully by implementing a policy that only pursued the reduction targets imposed upon the Netherlands by European Union law for 2020.¹⁵⁴ It established that these measures were insufficient to meet the State’s obligations to protect its citizen’s right to life as well as the right to a home and private life because there is a known, imminent and real danger that these human rights will be violated by climate change impacts.

In two aspects, the decision seems to deviate from previous judgements conforming to a narrow view regarding the links between existing human rights and the environment. First of all, the Appellate Court dismissed the government’s claim of judicial intervention with government policies, which it said should be discussed in Parliament rather than in a court, pursuant to the principle of the division of powers.¹⁵⁵ Second, it held that claims of Urgenda, as an agent of public interest actions’, are admissible insofar as it was acting on behalf of the current generation of Dutch nationals against the emission of greenhouse gases on Dutch territory. Even though it based its judgment, inter alia, on provisions of the ECHR, it contradicted the jurisdiction of the ECtHR that provides access to the ECtHR only if the claimants’ own rights are infringed.¹⁵⁶ The Dutch courts allowed Urgenda to proceed with its claims on behalf of Dutch citizens generally due to fairly liberal standing right granted to non-governmental organisations in the Dutch civil code.¹⁵⁷

The ruling provides strong evidence for the argument that (national) access to justice can help to integrate diverse, international, national and non-legal norms and orders. To substantiate its judgement, the decisions of the District Court and the Court of Appeal referred to a striking “continuum of rules”¹⁵⁸ on diverse legal (and non-legal) levels: The Court of Appeal upheld the decision that the State had breached the standard of due care towards its citizens under Dutch tort law and Articles 2 and 8 ECHR.¹⁵⁹ To establish the relevant “degree of care”, it stressed the importance of the precautionary principle and noted that, precisely the uncertainty of the future requires the State to adopt proactive and effective climate policies.¹⁶⁰ In addition, the Court relied heavily on IPCC reports and also on decisions adopted by the UNFCCC Conference of the Parties (CoP) in the past decade, which all indicate that concentrations of greenhouse gases in the atmosphere have to remain below the 450 parts per million (ppm) limit or even below a 430 ppm limit if the 1.5 °C temperature goal of the Paris Agreement is to be met with any degree of certainty.¹⁶¹ Although the Urgenda foundation as a (private) claimant could not rely upon those international standards, the court found that they may directly inform the interpretation of national laws’ “open standards and concepts” and affect the obligations of the parties.¹⁶² The relevant standard of due care was thus derived directly from scientific data in the IPCC reports,¹⁶³ international human rights law, non-binding international norms and national torts law.

3.3 Expanding the Scope of the Environmental Dimension of Human Rights: An Independent Right to a Healthy Environment

The controversy about expanding the concept of human rights towards environmental guarantees has continued for many years.¹⁶⁴ A constitutional or human right to a safe, clean, healthy and sustainable environment now is recognised in various forms in regional agreements¹⁶⁵ and many national constitutions.¹⁶⁶ Courts in many countries are, accordingly, applying a constitutional right to a healthy environment; regional agreements, such as the African Charter on Human and Peoples’ Rights and the Additional Protocol to the American Convention of Human Rights, specifically recognise the right to a healthy environment.¹⁶⁷

Recently, the debate has gained further, significant momentum as various approaches have been suggested for the creation of a binding international instrument that includes environment-related rights. For example, the 3rd revised draft for a legally binding instrument to regulate the activities of transnational corporations and other business entities elaborated by the open-ended intergovernmental working group established by the human rights council on the ground of UN Resolution 26/9 explicitly refers to the right to a safe, clean, healthy and sustainable environment, draft Article 1.2.¹⁶⁸ The draft for a Global Pact for the Environment, presented in 2017, recognised in its first article the right of every person “to live in an ecologically sound environment adequate for their health, well-being, dignity, culture and fulfilment”.

The Global Pact for the Environment

This initiative aimed at integrating and synthesizing the principles outlined in existing instruments such as the Stockholm Declaration, the Rio Declaration and other instruments and to address existing gaps in international environmental law—e.g. the absence of a broader common core of legally binding principles in international environmental law, the lack of overarching principles in international environmental law which could provide solutions for conflicts between instruments with limited sectoral or spatial scope, the respective judicial decisions in diverse fora as well as deficits regarding clarity and force of environmental principles.¹⁶⁹ One of the major objectives of the Global Pact was thus to consolidate all the existing principles of environmental law into one instrument. Several elements, particularly the first global recognition of a right to a decent environment in a global treaty and its centrality as a potential ‘Grundnorm’ of the Pact was considered to be particularly important and innovative.¹⁷⁰ Resolution 72/277 “Towards a Global Pact for the Environment” adopted by the UN General Assembly on 10 May 2018 was supposed to open the floor to negotiations on the Pact. However, the open-ended working group, tasked by the General Assembly with examining the draft’s proposals regarding its substance and implementation as a new international treaty, abandoned the idea of a binding instrument. In accordance with the recommendations of the working-group, resolution 73/333, adopted by the General Assembly on 30 August 2019, provided “to forward these recommendations to the United Nations Environment Assembly for its consideration, and to prepare […] a political declaration for a United Nations high-level meeting, subject to voluntary funding […] with a view to strengthening the implementation of international environmental law and international environmental governance.”¹⁷¹

While the failure of the Pact may be understood as evidence for the challenges associated with environment-related international treaty law, the positive expectations attached to the binding instrument remain instructive. John Knox, the former Special Rapporteur to the UN Human Rights Council on the issue, holds that including the human right to a healthy environment in a Global Pact would strengthen the growing ties between human rights norms and environmental principles. It would accordingly infuse international environmental norms with human rights: Including the human right to a healthy environment as the first article of the Pact thereby would allow to place its environmental principles—such as the precautionary principle, rights of access to information, participation, and remedy, reference to environmental impact assessment and the calls for adoption of effective enforcement laws and international cooperation—in the context of subjective rights. The right thus would “help to re-orient international environmental law from its traditional State-centric focus, according to which its obligations are owed only by States to other States and make clear that States owe obligations not only to one another, but also, and more importantly, to individuals, who therefore should have access to compliance mechanisms to ensure that the obligations are being met”. A human-rights-based approach to environmental protection thus was supposed to support stronger compliance mechanisms open to the public as well as calls for new agreements on procedural rights. Relatedly, such an approach was supposed to help re-orient international environmental law from its traditional focus on transboundary harm. The recognition that environmental harm has implications for human rights, even if the harm does not cross an international border, would open the door to considerations of sustainable development in terms of binding human rights obligations, not just non-binding political declarations.

UN HRC Resolution 48/13

In contrast to the Global Pact, other approaches to linking human rights to environmental protection have been more successful. At the conclusion of his efforts to map national and international practice on the intersection of human rights and the environment,¹⁷² the Special Rapporteur to the UN Human Rights Council on the issue of human rights obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment recommended that the Human Rights Council support the recognition of the right in a global instrument.¹⁷³ In October 2021, the Human Rights Council adopted its Resolution 48/13 and thereby, in a step applauded as “historic”,¹⁷⁴ recognized the human right to a safe, clean, healthy and sustainable environment.¹⁷⁵ The resolution acknowledges the importance of a safe, clean, healthy and sustainable environment as critical to the enjoyment of all human rights and calls on States to build capacities for its implementation, to enhance their cooperation with relevant stakeholders for the implementation of the right. Importantly, in the context of this book, the resolution also cites the UNGPs on Business and Human Rights, which underscore the responsibility of all business enterprises to respect human rights.¹⁷⁶

Resolution 48/13, albeit not legally binding, is considered a strong statement highlighting the importance of the link between human rights and the environment and providing an additional tool to challenge State and corporate actors for failing to take prompt and adequate action to address the triple environmental crises of climate change, pollution, and nature loss.¹⁷⁷ In the end, it could pave the way for formal recognition by the UN General Assembly and thus gather the expressed support of all 193 Member States.¹⁷⁸

With respect to the gaps left by a narrow view on the links between human rights and the environment outlined above, it is unclear whether Resolution 48/13 goes beyond simply ‘greening’ traditional human rights. To some extent, the resolution seems to reflect a rather narrow understanding when it emphasises the importance of a healthy environment for the enjoyment of traditional individual and collective rights as well as the important role of procedural rights for environmental protection. It is clear, that a right to a healthy environment can entail very different outcomes: The preceding Framework Principles of the Special Rapporteur, as explicated above,¹⁷⁹ are supposed to reflect the main existing human rights relevant to the environment and explicitly are not intended to create new obligations. Such a right may have advantages and may even be helpful in successively closing the gaps related to current attempts to ‘green’ existing human rights.¹⁸⁰ It thus is supposed to recognise and clarify the links between a healthy environment and the achievement of existing civil, political, economic, and social rights and, thereby, raise the profile and importance of environmental protection.¹⁸¹

The practical implications of such an understanding of a right to a healthy environment, for example by emboldening progressive judges in the adjudication of environmental disputes all over the world,¹⁸² should not be underestimated. A mere clarification of the links between ‘traditional’ human rights and the environment would, however, not necessarily solve the problems identified with holding a narrow view: It therefore is held, that a right to a healthy, decent or satisfactory environment should not be confused with existing case law on the right to life, health, or private life or with procedural innovations stemming from the Aarhus Convention: “To do so would make it little more than a portmanteau for the greening of existing civil and political rights”.¹⁸³ An independent right to a healthy environment should, accordingly, rather refer to the environment as a public good and provide additional legal means of balancing environmental objectives against economic development. It could be envisaged within the context of economic and social rights, where to some extent it already finds expression through the right to water, food, and environmental hygiene.¹⁸⁴ When applied by the judiciary, it should provide additional legal means to close gaps in environmental laws and create better opportunities for access to justice. Environmental rights could encompass the realisation of additional individual rights and obligations and even rights to a particular quality of environmental conditions. Such rights also entail new rights holders, such as future generations.¹⁸⁵

Irrespective of the interpretation of Resolution 48/13, there is evidence to suggest that a progressive understanding of environment-related environmental rights in this respect is also becoming increasingly relevant. Substantive ideas of inter-generational or inter-temporal dimensions of human rights have gained significant momentum, in particular in climate change litigation. Accordingly, future generations will be more susceptible to the long-term effects of climate change as its impacts will disproportionally disadvantage them. Not only will the consequences of climate change directly interfere with their enjoyment of human rights; the (side-)effects of measures of adaptation and mitigation may also indirectly interfere with their enjoyment of human rights.¹⁸⁶ In Germany, the German Federal Constitutional Court has prominently clarified that protection of life and physical integrity under Article 2(2) sentence 1 of the German Basic Law can involve the right to protection against impairments of fundamental rights by environmental harm, regardless of by whom and through what circumstances these rights are threatened. The State's duty to protect, which follows from Article 2 of the Basic Law, also includes the duty to protect life and health from the dangers of climate change, which can also establish an obligation to protect with regard to future generations.¹⁸⁷

Moreover, and contrary to the dominant anthropocentric perspective which perceives environmental rights as individual (human) rights, many consider environmental rights as extending to non-human rights holders, thus reflecting eco-centric approaches and perspectives to environmental protection.¹⁸⁸ In this respect, a recent resolution of the parliamentary assembly of the Council of Europe deserves attention in that it echoed a similar understanding: The resolution criticises the ECtHR’s “anthropocentric and utilitarian” approach to the environment which often prevents natural elements from being afforded any protection per se. As the Court’s case law provides for indirect protection of a right to the environment by sanctioning only environmental violations that simultaneously result in an infringement of ‘traditional’ human rights, the Assembly encourages the Council of Europe to recognise, in time, the intrinsic value of nature and ecosystems in the light of the interrelationship between human societies and the environment. The resolution states, that “[r]ecognizing an autonomous right to a healthy environment would have the benefit of allowing a violation to be found irrespective of whether another right had been breached and would therefore raise the profile of this right.”¹⁸⁹

An eco-centric approach to environment-related rights, according to Kotzé, sees the environment as a condition to life, thus placing limitations on individual freedoms. Stopping short of giving rights to the environment, eco-centric rights are thus more inclined towards limiting the currently almost unfettered human entitlement to resources.¹⁹⁰

The Inter-American Court of Human Rights’ Advisory Opinion on the Environment and Human Rights—An Eco-centric Approach to Human Rights

On 7 February 2018, the Inter-American Court of Human Rights published an Advisory Opinion on the Environment and Human Rights which is seen to open the door to new categories of claims in the Inter-American system because it recognised an independent right to a healthy environment (Article 26 of the American Convention on Human Rights).¹⁹¹ The Court held that the right not only protects individual human rights such as health, life or physical integrity of individuals. It held that forests, rivers and seas, rather constitute protected juridical interests in and of themselves, meaning that harm to the environment could potentially be justiciable, even in the absence of evidence of harm to individuals (a requirement which has led to the dismissal of environment-related claims in other cases).¹⁹² The Court also made clear that States have an obligation to act diligently to prevent impacts on human rights and, much like in Urgenda v the Netherlands , relied on the precautionary principle to substantiate the duty to protect human rights: States must act in accordance with the precautionary principle for the purpose of protecting the right to life and personal integrity, in cases where there are plausible indicators that an activity could bring serious and irreversible damage to the environment, even in the absence of scientific certainty.¹⁹³

4 Conclusion: Extending the Scope of Environmental Rights, Strengthening Environmental Standards and Obligations

The analysis has shown significant dynamics in jurisprudence, legislative and scientific discourses with respect to environmental rights and correlative horizontal obligations of private actors. Even though the further course of these dynamic developments must be regarded as open, certain tendencies can be identified.

First of all, in light of the above, it seems plausible to assume that concepts about environmental human rights will further evolve. A closer look at the substantial links between human rights and environmental protection has shown that there is considerable potential to improve the prospects of a (human) rights-based approach to environmental protection. Victims of environmental damage de lege lata can, in many cases, already translate the sustained impacts in justiciable violations of ‘traditional’, universally recognised human rights. The progressing “greening” of human rights in this sense emphasises the existential threats posed by environmental damage and climate change and is of significance in its own right. However, it can be plausibly assumed that the developments may go beyond this clarifying function of environmental human rights. It is an open question, if recent initiatives seeking to introduce a right to a healthy environment refer to both conceptual and normative clarifications of the links between environmental damage and existing human rights without extending the limits of a traditional approach.

A number of prominent examples illustrate that national, as well as international courts and international organisations, are willing to apply and further develop progressive approaches which extend the substantial scope of environmental human rights. Such an understanding of environmental rights may implicate a right to certain environmental qualities, introduce new rights holders, or even imply that harms to the environment are justiciable absent evidence of harm to individuals. Traditional limitations of rights-based approaches to environmental protection, e.g. in cases of dispersed, uncertain, or delayed damage might be overcome.

It also becomes increasingly evident that international courts and organisations may be, at least in principle, prepared to implement standards of environmental care. The normative foundation of this environmental standard of care lies in a progressive understanding of environmental human rights and their relation to international principles of environmental law such as the precautionary principle. The specific standards which shape the content of the obligations, duty-holders owe to the human rights-holders when facing environmental risks, are found in international environmental hard and soft law, but also in internationally recognized scientific data, e.g. in IPCC reports.¹⁹⁴ Given such productive intersections, it seems plausible to explore the preconditions and implications of a growing “regime-congruence” between human rights and international environmental law. Such an approach conceptualizes, on the one hand, if and to what extent “congruent interpretation of environmental norms by human rights courts could indirectly reinforce compliance with the environmental regime” and, on the other hand, how, giving effect to environmental standards in human rights litigation, supports the protection of human rights.¹⁹⁵ In any case, the examination seems to confirm the potential of a rights-based strategy of environmental protection to contribute to normative change.

With respect to the complementary issue concerning international environmental obligations of private actors, however, the analysis has returned an ambiguous result. While certain developments regarding such international obligations are observed in specific international regimes, the prospects for direct corporate obligations in international law appear rather poor at the moment. This does not mean that there is a lack of relevant standards for private parties in transnational and international law. However, regimes of international hard and soft law still lack effective implementation and enforcement in transboundary constellations. Private standards may become increasingly important in commercial transactions and in the business relations of transnational companies but won’t provide the necessary and appropriate level of regulation.

The international governance gaps¹⁹⁶ with respect to transnational corporations and other businesses thus remain. That’s why debates and policies aiming at a juridification of businesses’ transnational obligations, for some time, have concentrated on national legal instruments with extraterritorial effects. The most prominent example of such an approach is the State’s use of domestic law to impose legal human rights due diligence obligations on business actors and activities within their territorial jurisdiction that reach out into the corporate group and the global value chain. Concurrently, it is stressed, that human rights obligations towards foreign victims of corporate human rights abuse, should be enforceable in home-State courts via transnational tort litigation.¹⁹⁷ Common principles of tort law already provide certain bases the development of a standard of care, which aims at the protection of human beings and, at the same time, gives effect to transnational environmental norms.¹⁹⁸ Properties, conditions and potential limitations of national civil liability for environmental damage will be further discussed in Chap. 6, national value chain regulation is looked at in Chap. 7. At this point, it is sufficient to point out that such approaches in national law might also be seen as tools to process and further develop the productive intersections between environmental law and human rights.

All of this does not mean that policies designed to improve the state of businesses’ liability for environmental harm on the international level should generally be disregarded. The UN Treaty Body’s approach, sketched out in this Chapter, which aims at anchoring States’ domestic due diligence regulation with extraterritorial effect in international legal obligations to prevent and redress business-related human rights violations outside their borders,¹⁹⁹ may be promising also with a view on the productive intersections between human rights and environmental law. Such an approach would involve international agreements that establish new obligations for States to impose and/or enforce obligations on businesses and clarify the scope of States’ duty to protect human rights and the environment. Governments then would be accountable for any failure to regulate and control environmental hazards, specifically those caused by businesses, while also being responsible for facilitating access to justice and enforcing environmental laws and judicial decisions.²⁰⁰ The further development of this process remains to be seen. A comparable pathway is further examined in Chap. 5 which looks at international conventions focusing on the international harmonisation of national environmental liability regimes.