As we look back on 2023, we are reminded that historic milestones and tragedies of epic proportions have formed the backdrop of our work on legal matters pertinent to peace and human rights during this, our first, year of operation at Paxus.
December marks the 75th anniversary of the Universal Declaration of Human Rights (UDHR), a document drafted by representatives of different legal and cultural traditions from all regions of the world, that was adopted by the UN General Assembly as a common standard of achievements for all peoples and all nations. The UDHR sets out, for the first time, fundamental human rights to be universally protected, and paved the way for the adoption of more than seventy human rights treaties at the global and regional levels.
Late 2023 also marked the 75th anniversary of the Genocide Convention, which seeks to protect groups, and the 25th anniversary of the UN Declaration on Human Rights Defenders, which seeks to protect those who defend the human rights to which we are all entitled and hold our governments and companies to account when they let us down.
In the decades since the adoption of the UDHR, human rights have become more recognised and guaranteed across the globe, and this has extended to human rights as they are affected by business activities since the adoption of the United Nations Guiding Principles on Business and Human Rights (UNGPs) in 2011.
However, the promise of both the UDHR and the UNGPs, of dignity and equality in rights against government and business interference, has been under a sustained assault in recent years and especially this past year. The promise of “never again” that inspired the Genocide Convention has tragically become “time and again”, reminding us that nothing can prevent hate crimes more than the existence of societies where human rights are fully enjoyed by all.
As the global economy and societies face new and ongoing challenges, including the climate crisis, conflicts involving tremendous loss of life and horrific abuses, exploding inequalities, and a misaligned global financial system, the values, and rights enshrined in the UDHR and applied to business activities through the framework of the UNGPs provide guideposts for our collective actions that must not leave anyone behind.
Our work at Paxus over the past year was guided by human rights principles and aimed to show our business and sovereign clients the way to approaches that can help resolve tensions and create peaceful and stable solutions to their legal challenges.
We have helped clients engage with the most difficult issues of our time, such as whether and how to arrive, stay or go from conflict zones on three continents; how to align a financial institution’s business activities with a pathway towards achieving global net zero emissions and zero business-related human rights impacts; what the human right to a clean, healthy, and sustainable environment means to international business in a diverse range of industries, including commodities trading; what the human right to health means for pharmaceutical companies in an age of growing health inequality, addiction and pandemics; how to reconcile international investment law and international human rights law in the context of an arbitration under an investment treaty about climate mitigation measures; and the list goes on…
We have also helped clients with a range of more prosaic issues, such as their human rights policies and due diligence processes, net-zero transition plans, a matter of private international law for a transnational tort case and an arbitration plagued by interminable procedural wranglings…
The importance of this type of advice and representation has been affirmed by the sometimes-wobbly advances that governments have made over the course of 2023 in embedding corporate respect for human rights and the environment into national legislation.
Last week saw EU legislators reach political agreement on the much-anticipated Corporate Sustainability Due Diligence Directive (CSDDD), which will require large businesses to carry out and report on both human rights and environmental due diligence or face civil liability, and also to develop climate transition plans. The new corporate obligations are influenced by the UNGPs and represent a landmark in the developing landscape of regulation aimed at managing businesses’ impacts on society and the planet, although there was a mixed response to financial institutions only being required to undertake due diligence on their upstream value chains.
The start of 2023 saw the new German Supply Chain Act come into force, while the EU Deforestation Regulation came into effect in June. Proposed human rights due diligence legislation was tabled in the UK and South Korea, among other major markets, while India began to consider a proposal for mandatory supply chain ESG disclosures.
In our “What’s in Store for 2024” alert in the New Year, we will explore the CSDDD and discuss the business and human rights legislation that will come into effect in several markets next year, including Canada’s Forced Labour and Child Labour in Supply Chains Act.
Advances and set-backs at the international level in 2023 have spurred us on in our efforts to help clients align their business activities with respect for human rights and net-zero.
Last week also saw COP28 conclude the first global stocktake of climate action under the Paris Agreement, which remains far too slow, and adopt a decision calling for accelerated action, including a transition away from fossil fuels towards climate-neutral energy systems – the first-ever COP decision to address fossil fuels.
The OECD Guidelines for Multinational Enterprises were updated earlier in the year to include, among other advances, recommendations for enterprises to align with internationally agreed goals on climate change and biodiversity; to conduct due diligence on impacts and business relationships related to their use of their products and services; better protection for human rights defenders who raise concerns regarding the conduct of business; and to ensure lobbying activities are consistent with the Guidelines.
In July, the UN Intergovernmental Working Group released an updated draft of the legally binding instrument on business and human rights, which many critiqued as a step backwards, including because it removed reference to heightened due diligence in the context of conflict zones and language pertaining to the climate crisis.
Human rights and the environment also became a focal point of many international disputes in 2023 and governments’ desire to preserve their policy space to regulate business in these areas prompted some to withdraw from the Energy Charter Treaty, which has provided the foundation for many investment disputes in recent years.
In our “What’s in Store for 2024” alert in the New Year, we will examine the COP 28 decisions and discuss the business and human rights litigation and arbitration landscape, including the recent UK High Court decision that the Ogale and Bille communities can bring their legal claims against Shell over allegations that their right to a clean and healthy environment has been breached.