The Shortcomings of Traditional Legal Solutions

This chapter discusses the ineffectiveness of national-level control over multinational enterprises—the legal control over a subsidiary of a multinational company by the host State, and the legal control over a multinational parent company by the home State. In addition, the chapter discusses the significant limitations to ensuring the environmentally sound conduct of business under international law. To that end, it focuses on State responsibility, civil and criminal liability in international environmental law, and international criminal law. The chapter then contrasts multinationals’ significant degree of protection under international investment law, to the protection afforded by international human rights law to victims of substandard conduct by private companies, including from an environmental perspective.

Conclusions: Contributions and Areas for Further Research

This concluding chapter identifies the original contributions to academic and policy debates that this book has offered, and identifies areas of further research, such as on the different contributions and mutual influences of international standard-setting and litigation, and the private and public law dimensions of corporate accountability and responsibility standards and means of implementation.

The Emergence of International Standards

This chapter provides a short theoretical discussion on the role of standards, as opposed to rules and principles, in the progressive development of international law. The chapter also assesses the conceptual and legal relevance of each initiative, namely: the UN draft Code of Conduct on Transnational Corporations, the UN Global Compact, the UN Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with regard to Human Rights, the influential UN Framework on Business and Human Rights and its Guiding Principles, the Guidelines for Multinational Enterprises of the Organization for Economic Cooperation and Development and the Performance Standards of the International Finance Corporation. The chapter discusses the different conceptual approaches taken by these initiatives and assesses the extent to which current human rights-based approaches have built upon the earlier consolidation of international corporate environmental accountability standards and the extent to which they contribute to further detailing these standards.

Introduction

This chapter explains the need for an international approach to address the question of acceptable corporate environmental conduct both on the basis of egregious cases of environmental damage and day-to-day negative impacts of corporations that appear to defy States’ regulations and controls. It also points to the desirability of private companies’ proactive contribution to the attainment of internationally agreed goals. The chapter provides a historical and conceptual introduction to evolving approaches in addressing corporate environmental conduct in the framework of public international law, with a view to introducing two key concepts—corporate responsibility and corporate accountability. The chapter explains how these two concepts have emerged, and how they have reached different stages of development and acceptance in international environmental law. The chapter further relates these concepts to business responsibility to respect human rights under the UN Framework on Business and Human Rights.

International Oversight

This chapter assesses the evolving mandate and practices of the international initiatives on corporate environmental accountability and responsibility, with a view to drawing comparative observations about the functions they perform. The chapter will first place international oversight approaches in the context of the academic debate on compliance. It will focus on analysing the practice of the most well-developed initiatives (the OECD implementation procedure and the IFC Ombudsman) and then contrast them with more incipient initiatives, such as the country visits by UN Special Rapporteurs and the integrity measures under the UN Global Compact. The aim of the analysis is to understand the contribution of these processes not only to the implementation of international standards in a particular context, but also to further international standard-setting.

Assessing the Convergence of International Standards on Corporate Environmental Accountability

This chapter critically analyses the international standards on corporate environmental accountability and responsibility by relying on the normative advances made under the Convention on Biological Diversity (CBD). A brief explanation of the developments related to the private sector involvement under the CBD precedes the standard-by-standard discussion. The degree of normative convergence is assessed across standards of corporate environmental accountability discussed in the previous chapter by comparing and contrasting them. Substantive dimensions of these standards are also identified on the basis of the advice elaborated by UN Special Rapporteurs relying on the CBD inter-governmentally approved guidance. The chapter thus shows that principles of international environmental law (environmental integration, prevention, precaution) have been initially translated as corporate environmental accountability standards, but over time have also been specified more substantively into corporate environmental responsibility standards. It also analyses standards based on procedural environmental principles (access to environmental information, participation in decision-making, access to justice).

Assessing the Convergence of International Standards on Corporate Environmental Responsibility

This chapter carries out a critical analysis of the international standards on corporate environmental responsibility by relying on the normative advances made under the Convention on Biological Diversity. It focuses on the more recent emergence of these substantive standards that relate to the human rights of indigenous peoples to their territories, lands, natural resources, and traditional knowledge (environmental and socio-cultural impact assessments, free prior informed consent, fair and equitable benefit-sharing). The chapter also discusses other international standards of corporate environmental responsibility with regard to protected areas, and the sustainable use of natural resources, including in relation to ecosystem services, invasive alien species, threatened species, sustainable agri-business, and sustainable production more generally.