Towards Corporate Obligations for Freshwater?

The European Commissions Proposal for a Corporate Sustainability Due Diligence Directive and Freshwater Issues

Source: https://unsplash.com/photos/rrfdqjJWwmU 

By Candice Foot

Freshwater is essential for all life on this planet. Despite this fundamental life sustaining role, the anthropogenic pressures exerted on freshwater resources have increased exponentially, some of the most substantial of which are caused by companies. Companies exacerbate freshwater scarcity due to their volumes of freshwater extraction. Globally, approximately 84% of freshwater resources are withdrawn by the agricultural and industrial sectors. This mass extraction contributes to freshwater scarcity in the basins where companies operate, making freshwater unavailable to meet basic human and environmental needs. Companies are also a major source of freshwater pollution, caused by their discharging harmful agricultural effluents and industrial wastewater contaminated with chemical and radiological substances into surrounding freshwater sources. This deteriorates freshwater quality, causes serious health problems for people and destroys ecosystems. 

In response to companies’ adverse impacts on human rights and the environment, regulatory and governance instruments that aim to prevent and mitigate these have been developed. These include prominent international frameworks like the 2011 United Nations Guiding Principles on Business and Human Rights, and the 2011 OECD Guidelines for Multinational Enterprises, which have introduced a core concept for companies: human rights and environmental due diligence. Due Diligence is an ongoing process that companies should implement to identify, prevent, mitigate and account for how they address potential and actual human rights and environmental impacts in their own operations, their global value chains, and other business relationships.  These instruments have culminated in the most recent rendition, the European Commission’s 2022 Proposal for a Corporate Sustainability Due Diligence Directive, which introduces several obligations for companies, the primary of which is a due diligence obligation.  

Drawing from this important context and the need for companies’ adverse impacts on freshwater resources to be mitigated, it is crucial to explore how the draft Directive deals with companies’ adverse impacts on freshwater by looking at the material scope of the due diligence obligation. 

The material scope of the due diligence obligation is contained within a two-Part Annex, and is defined by a limited catalogue of human rights norms and environmental standards that originate from specifically selected international instruments. 

Part I of the Annex pertains to human rights included in international human rights instruments and covers human rights in two ways. First, it explicitly lists a limited number of human rights norms. Second, it includes a “catch all” phrase which refers to a list of human rights instruments. One of the human rights explicitly listed is the prohibition of causing any measurable environmental degradation that denies a person access to “safe and clean water.” While this would seem to encompass the human right to water, the Annex formulates this right in a novel way that is a limited construction of the international human right to water’s normative content. The international human right to water’s normative content encompasses three elements: quantity, quality, and accessibility. Quantity requires freshwater supply to be sufficient and continuous for personal and domestic uses, like drinking, cooking and personal and domestic hygiene. Quality entails that it should be clean and free from harmful substances. Accessibility necessitates four elements: physical, economic and informational accessibility, as well as non-discrimination. 

The draft Directive’s human right to water appears to be narrower than the international right. It encompasses the normative content of the right relating to accessibility by use of the word “access”, as well as to quality by the words “safe and clean.” However, there is not explicit reference to quantity, other that potentially “drinking.” If “drinking” is indicative of the quantity of freshwater the right encompasses, then this is a narrow conceptualisation compared to the international right which includes multiple uses in addition to drinking, like cooking, cleaning and hygiene. 

 The right can potentially be included in its full normative content via the “catch all” phrase. The instruments listed there include the International Covenant on Economic, Social and Cultural Rights, which is the instrument that the international right to water was derived from. It also includes other instruments that include the human right to water for specifically protected groups like women, children and persons with disabilities. As the draft Directive envisions broadening the scope of human rights, it is plausible that the narrowly defined explicit human right to water could be expanded to include a broader right. However, it remains unclear if the broader right will be covered by the draft Directive.  

 Part II pertains to the environmental standards, and lists a few standards included in several international environmental conventions or multilateral environmental agreements (MEAs). The material scope of the selected MEAs is wide but arbitrary and ranges from the protection of biological diversity to protecting the environment against certain chemical pollutants. This is an exhaustive list, and is limited to those standards contained within the Annex’s 12 articles. 

The draft Directive’s reliance on MEAs renders it reliant on the fragmental patchwork of MEAs in international environmental law, and results in it missing the issues that the regime has not regulated. Additionally, even though there are over 250 MEAs currently in force, the draft Directive only utilises seven of those which are available.  

While freshwater is not explicitly mentioned in the environmental standard, some of the MEAs can encompass freshwater. For example, the environmental standards in some of the MEAs list chemicals that are known to pollute freshwater. This is evident in the Minamata Convention on Mercury, that encompasses the chemical mercury, and the Stockholm Convention on Persistent Organic Pollutants, that encompasses the chemical diedrin, both of which are known to pollute freshwater. While it appears positive that some freshwater pollution is encompassed by the MEAs, due diligence obligations are limited only to those chemicals contained within the MEAs. Pollution caused by chemicals or substances not contained therein fall outside the material scope of the draft Directive. Considering that the number of chemicals in the world is estimated to exceed 350, 000, this is a very limited material scope.   

Freshwater depletion is not explicitly contained within any of the MEAs, and the only possible way it may be implicitly encompassed is with reference to the Convention on Biological Diversity. The website of the convention makes it clear that freshwater itself is not biodiversity, but biodiversity is the life associated with freshwater, and thus the two cannot be separated. From this construction it may be possible that freshwater depletion can be encompassed within biological resources, however this interpretation is not guaranteed, and it remains to be determined if this implicit interpretation will be adopted. 

While the draft Directive certainly entails some positive steps in implementing legal obligations for companies to include freshwater issues in their due diligence processes, it is insufficient to cover all the adverse impacts that companies have on freshwater from both a human rights and environmental perspective. 

Moving forward, the draft Directive should be amended to more comprehensively account for how companies adversely impact freshwater. This could be done by amending the listing approach to encompass freshwater issues more comprehensively. From the human rights perspective the human right to water can be amended to align with the full normative scope as it exists in international instruments. From the environmental perspective a wider range of MEAs can be included that cover freshwater, however, if this approach is adopted the environmental material scope will always be limited to those specific environmental issues that are regulated by MEAs. Alternatively, the listing approach can be abandoned. This approach aligns with international instruments like the UNGPs and OECD Guidelines that acknowledged companies can adversely impact virtually the full scope of human rights and environmental standards and should thus assess their adverse impacts on the complete spectrum of these rights and standards as contained in international instruments.

 Such amendments are necessary if the draft Directive is to have any meaningful impact on how this life sustaining resource is used by companies.

Bio:

Candice Foot is a PhD researcher at the Erasmus Graduate School of Law in Rotterdam, the Netherlands, where she works in the interdisciplinary research initiative “Public and private interests: A new balance.” Her research is centred on exploring corporate responsibilities to respect freshwater. She is also a member of the Human Rights Here Editorial Board, as well as a member of the Netherlands Network for Human Rights Research Working Group on Business and Human Rights. 

Conference on Tobacco, Law and Human Rights: Crossing borders, spaces and substances

By Ellen Henricson

Tobacco is a leading cause of death, illness, and impoverishment. Its health risks, from direct consumption as well as second-hand exposure, are by now indisputable. Of the different available forms of tobacco, cigarette smoking is the most common one. Most smokers start already as children or adolescents and live in low- and middle-income countries. Other tobacco products, such as e-cigarettes, cigars, waterpipe tobacco, and various types of smokeless tobacco, are likewise inherently toxic and highly addictive. International, regional, and domestic laws are crucial for shaping tobacco policies, and there are increasing regulatory efforts on all levels. Still, legal scholarship on tobacco is scarce.

Aiming to fill this gap, Prof. Brigit Toebes, Dr. Katerina Tsampi and Dr. Michelle Bruijn, from the Faculty of Law of the University of Groningen and Global Health Law Groningen, organised, under the auspices of the European Scientific Network on Law and Tobacco and KWF, the International Conference on Tobacco, Law and Human Rights: crossing borders, spaces and substances in Groningen, the Netherlands on 12-13 May 2022. During the conference – which brought together legal practitioners, researchers, medical doctors, and advocates from various parts of the world – three main themes were considered. The first day focused on novel smoke-free policies and national best practices. With reference to lessons learned from the Council of Europe institutions, the role of human rights protection and accountability in tobacco control was highlighted during the second day. Lastly, the discussion moved on to the interplay between regulation of tobacco, cannabis, and alcohol.

Once Birgit Toebes had set the scene and opened the conference with a welcoming speech, Stefana Negri gave the first keynote speech outlining lessons learned from the experience of various countries in creating and implementing smoke-free policies. During the first set of paper presentations, Nienke Boderie, Heike Garritsen, and Tessa van Deelen all shared their work on smoke-free policies. Nienke Boderie presented the results of a systematic review and meta-analysis on public support for smoke-free policies in outdoor areas and (semi-)private spaces globally. The results indicate that public support, which has increased over time, is the highest for indoor private areas, and especially cars with children. There are large differences between (ex-)smokers and non-smokers, but the degree of support is not significantly associated with age, sex, or parental status. Heike Garritsen, in turn, shared the results of a study examining the perception of key stakeholders at Dutch sports clubs with regard to implementing outdoor smoke-free policies. The main obstacles were impaired social functions of the clubs, problems with compliance and enforcement, conflict with smokers’ interests, and low priority in club management. Discussing a spatial analysis of socioeconomic neighbourhood differences in proximity to tobacco outlets, Tessa van Deelen noted that in three smaller cities, tobacco outlets were placed closer to neighbourhoods with lower socioeconomic status, but no correlation was found in Amsterdam. Point-of-sale tobacco control policies may reduce differences in smoking between socioeconomic groups within cities.

In her keynote speech, Wanda de Kanter brought up the possibility of using litigation as a tool for ending the tobacco industry once and for all, with examples of four Dutch criminal lawsuits brought by medical doctors. This was followed by Jasper Been’s keynote on the importance of smoke-free environments for ensuring a smoke-free generation. The day was concluded with two interactive sessions, the first dealing with the results of an interdisciplinary research collaboration on novel smoke-free policies protecting children as part of the tobacco endgame, and the second on translation of the national smoke-free generation policy to regional and municipal levels.

The first part of day two focused on human rights protection and accountability in tobacco control, as seen in the European institutions. The day was opened by Katerina Tsampi, who introduced the theme. Aoife Nolan then discussed the role of the European Social Charter in connecting the right to protection of health and tobacco control. Picking up the same thought, Katerina Tsampi illustrated how the European Court of Human Rights has dealt with the topic. Although its expected role is marginal, she found that the case-law on tobacco control is surprisingly rich and remarked that the European Convention on Human Rights system has significant potential in the fight against tobacco. Drawing a parallel, Giulia Bosi showed that a similar potential is inherent in the collective complaints procedure of the European Committee of Social Rights, which oversees the implementation of the European Social Charter that was discussed earlier by Aoife Nolan. This system has the potential to, on the basis of Article 11 and through collective complaints, directly address violations of the right to health caused by inadequate tobacco policies. Even though the mechanism has never been used in this way, Giulia Bosi argued that it presents a valuable tool to put pressure on States to do better, especially as there is no requirement of exhaustion of domestic remedies.

Phon van den Biesen continued the theme with a focus on the Dutch experience and with reference to the practical utility in litigation of the anti-lobbying Article 5.3 of the Framework Convention on Tobacco Control. In his experience, protection of the rights of the child and the link to international human rights are crucial since those provide for added legal weight whenever the interests of parties need to be balanced by the judiciary or the legislative. The general idea is that human rights interests should outweigh the commercial interests of the tobacco industry.

Presentations by Kelsey Romeo-Stuppy and Raouf Alebshehy continued the question of what role human rights and balancing might play in ensuring better tobacco control. Kelsey Romeo-Stuppy called for extending the human-rights based approach to tobacco control, as adopted in the United States, to Europe. She argued that change can be accelerated by reference to both international and national human rights advocacy. Raouf Alebshehy picked up the thread of Article 5.3 of the Framework Convention on Tobacco Control and emphasised the importance of not allowing the tobacco industry to influence tobacco policies. However, a study he took part in found that diplomatic representatives of States nevertheless repeatedly have lobbied for the tobacco industry, attended meetings with the industry, and at one instance even opened a cigarette factory. This shows the need to enforce Article 5.3 also for diplomats who are working abroad. The theme was concluded with an interactive panel discussion led by Dominique Mollet and Ellen Henricson, who gave an overview of their mappings of what the European Court of Human Rights and the European Committee of Social Rights respectively have said on tobacco control. In the former, the most striking examples are prison cases, while the latter focuses on protection of children and education. 

The last part of the conference, covering the interplay between regulation of tobacco, cannabis, food, and alcohol, was introduced by Michelle Bruijn, who emphasised the importance of finding the sweet spot between insufficient and excessive levels of regulation. Josiane Rioux Collin then discussed the relatively new and underresearched  e-cigarettes. Due to the grey areas created by lack of scientific data and research, regulation is rather complex. Since the product is particularly attractive to young people and might act as a gateway, the precautionary principle was central in adopting legislation in Quebec. Continuing on the importance of the precautionary principle and focusing on child health, Adam Bertscher took South African alcohol regulation as a case study in how human rights considerations can aid in ensuring protection. He discussed the balance against advertising rights, including in particular the freedom of expression. Limitation of advertising is justifiable when done with the aim of protecting public health, children’s right to health, and the right to be free from all forms of violence. As such, the human rights arguments used by industries generally do not hold when subjected to a thorough human rights analysis.

Pointing to the link between cannabis, alcohol, tobacco, and unhealthy foodstuffs, Margherita Melillo and Isabel Barbosa called for a coherent regulatory approach to unhealthy commodities. They showed how different products, which all are unhealthy and potentially addictive, have been met with radically different policies. They agreed with Michelle Bruijn that while unregulated markets are ineffective in addressing public health concerns, criminalising unhealthy commodities is too. Hence, the current patchwork of fragmented regulation should in their view be developed into a coherent middle-ground framework, centred around the protection of public health. Florence Berteletti gave the final keynote, emphasising how crucial it is to keep the tobacco industry from having any influence on regulation, the importance of advocates speaking with one voice despite any internal disagreements, and that understanding the function of policy processes can help.

The conference was closed by Brigit Toebes, who summarised the take-aways. A few main points were present throughout the rich discussions of the conference. Firstly, the clear consensus was that protection of children is a promising starting point for advocacy. Further, the industry must be kept out of the regulatory process, to enable any progress at all. Meanwhile, regional and international institutions have the potential to address inadequate tobacco policies, for instance by relying on human rights standards. Lastly, to achieve a coherent regulatory framework for effective tobacco control of the kind that is desperately needed, interdisciplinary collaboration is key.

 Bio

Ellen Henricson follows the programmes LLM International Human Rights Law and Research Master in Theoretical Philosophy at the University of Groningen. 

Banning Russia Today and Sputnik in Europe is a bad idea

Source: https://wordpress.org/openverse/image/0ba994c4-1df9-4667-9904-da741ecb187c/

By Raghav Mendiratta and Natalie Alkiviadou

On March 1, 2022, Regulation 2022/350 of the Council of the European Union (EU) suspended broadcasting activities of Russia Today (RT) and Sputnik in the EU until Russia ends the aggression against Ukraine and its media “cease to conduct propaganda actions” against the EU and its Member States. The Regulation (as well as the respective Council Decision) justified this measure on the grounds that Russia has engaged in a "systematic, international campaign of media manipulation and distortion of facts to enhance its strategy of destabilization of its neighboring countries and of the Union and its Member States".

On March 4, in an email addressed to Google and cataloged on the Lumen database, the European Commission required that search engines such as Google must delist RT and Sputnik. It further states that social media “must prevent users from broadcasting (lato sensu) any content of RT and Sputnik” while accounts belonging to the two or their affiliates must be suspended. Posts made by individuals that reproduce RT and Sputnik content must not be published and if they are, must be deleted. This is a particularly broad interpretation of the Regulation and imposes a general monitoring obligation on operators that might be disproportional. A general monitoring obligation is contrary to the doctrine of conditional liability attached to the E-Commerce Directive and the proposed text of the Digital Services Act (DSA).   This means that companies are not obligated to enforce measures for purposes of blanket monitoring of user content. Instead, companies are liable for illegal content that they are made aware of. In the DSA, this takes the form of a “notice and take down” regime.

The Limited Effect of Propaganda and the Legitimacy of the Ban

RT and Sputnik are both closely linked to the Kremlin. Sputnik was created by a Presidential decree with the aim to “report on the state policy of Russia abroad”. RT is fully financed by the Russian government and is included in an official list of core organizations of strategic importance to Russia. They have both been documented in spreading disinformation in Europe on various instances.  However, banning them entirely deviates from the standard European approach to the handling of disinformation, which does not include blanket bans and removals. In fact, the proposed text of the DSA stipulates that in “extraordinary circumstances” including war, where the online environment may be misused for the rapid spread of illegal content or disinformation, the European Commission may initiate the drawing up of voluntary crisis protocols to coordinate a response in the online environment. Such protocols may include measures which are “strictly necessary to address the extraordinary circumstance” and “must not amount to a general obligation for…very large online platforms to monitor the information”.

Further, the approach to RT and Sputnik is misplaced and does not reflect empirical and socio-political realities. Empirical data increasingly suggests that the perception of social media being awash in misinformation is exaggerated.

Considering an evidence-based approach on the limited impact of propaganda, the role of counter-narratives, and the over-zealous nature of the measures, it is doubtful whether the Regulation and the Commission’s interpretation are compatible with International Human Rights Law (IHRL). Article 20(1) of the International Covenant on Civil and Political Rights (ICCPR) prohibits any propaganda for war. However, General Comment 34 of the Human Rights Committee highlights that any legal prohibitions arising from Article 20 must be justified and be in strict conformity with Article 19 which provides for freedom of expression. Restrictions under Article 19 can only be legitimate if theymeet the strict tests of necessity and proportionality which entail an immediate and direct connection between the speech and the threat whilst measures must be “the least intrusive instruments” to achieve the legitimate aim pursued.  These could include labelling or downranking or tech-oriented solutions to prevent virality. However, we are confronted with a lack of a substantive and evidence-based justification for the above blanket ban of RT and Sputnik which, subsequently, does not reflect a direct link with the aim pursued and is over-broad and over-intrusive.

Further, the approach prevents users to engage with such content for political discourse or counter-narratives and sets a negative precedent for social media platforms by signaling those blanket removals of content are necessary and proportional. Moreover, thanks to the Brussels Effect and the digitalization of the world stage, such measures could ultimately lead to widespread censorship not just in the EU but also in other parts of the world, stifling discussion of issues of public interest as well as criticism of governments. Further, it further opens the floodgates for authoritarian leaders around the world including Putin himself to cite this as precedent for the censoring of content in their own countries. Unsurprisingly, in the days following the EU Regulation of March 1, Russia decided to ban numerous Western media outlets including BBC, Deutsche Welle, Euronews, and others. 

RT (France) has challenged the sanctions before the EU’s General Court, which will be called to make significant calls on the current situation but, also, on the future of free speech in the union. Any outcome will be a double-edged sword. On a political level, a judgment in favor of RT (France) would give an immense boost to Putin's propaganda machine. A judgment in favor of the restrictive measures would further deteriorate the already vulnerable position which freedom of expression finds itself at and further dilute central rule of law doctrines such as proportionality, necessity, and transparency.  

A dangerous card from the authoritarian’s playbook

In light of the above, we argue that the conformity of the ban with IHRL is dubious while it goes against the general position of the EU towards handling disinformation. Moreover, letting RT and Sputnik run its course unfettered thereby allowing political discourse and, most importantly, counter-narratives would be more effective to tackle the problems associated with these two outlets. As noted in her report on disinformation, the UN’s Special Rapporteur on the Freedom of Opinion and Expression “attempts to combat disinformation by undermining human rights are short-sighted and counterproductive”.  Freedom of expression must be given the position it deserves in times of peace and war. There ought to be space to allow war critics, ordinary citizens, and scholars to debunk myths and counter disinformation. If the EU does not reverse its free speech path in the discussed cases of RT and Sputnik, it may be playing a dangerous card from an authoritarian’s playbook.

Bios: 

Natalie Alkiviadou is senior research fellow at the Future of Free Speech Project at Justitia.

Raghav Mendiratta  is a tech policy counsel and a Legal Fellow at the Future of Free Speech Project (Justitia and Columbia University, New York) 

“The computer said it was OK!”: human rights (and other) implications of manipulative design

By Dr. Silvia De Conca

Credit: Silva de Conca

This is Part 2 of a two-part series.

On November 19^th, 2021, the “Human Rights in the Digital Age” working group of the NNHRR held a multidisciplinary workshop on the legal implications of ‘online manipulation’. This is Part 2 of a two-part series.

Manipulative design, autonomy, and human rights.

By turning individuals into means to an end, manipulative design infringes on their dignity, because it affects their intrinsic value as human beings. Manipulative design is a constraint to individual autonomy, whether it is used for ‘paternalistic’ policymaking or by companies for profit. The very nature of manipulation makes it incompatible with self-determination because manipulation acts beyond the control of the addressees, covertly steering their decision-making processes. Autonomy is one of the values underlying many human rights provisions. The European Court of Human Rights (ECtHR) has consistently affirmed that autonomy is an underlying principle, functional to interpreting some of the guarantees and protections offered by the European Convention for Human Rights (ECHR). This is the case, for instance, of the right to privacy (article 8 ECHR), that has been interpreted as protecting autonomy and self-determination (Pretty v The U.K., 29 April 2002). The right to privacy also protects individual integrity, which includes not just physical aspects, but also autonomy, feelings, self-esteem, and thoughts. Manipulation can potentially infringe upon both autonomy and integrity, as it interferes with the capability of individuals to take a decision and carry it out in the physical world (online or offline) in an independent fashion. 

The ECHR also protects the freedom of thought, conscience, and religion of individuals (article 9). So far, the existing case-law and interpretations of this provisions have focused solely on the religious aspect, discussing the relationship between citizens and the states with regard to adhering to a belief. The debate around article 9 has been focusing more on the freedom of thought only in recent times, following the developments of brain-computer interfaces (BCI) and the possibility for technology to tap into our minds. One of the topics discussed by experts is what happens if BCI enables companies or states to affect and manipulate the thoughts of individuals. In this sense, the widespread use of online manipulation makes this question more pressing. BCI is still in the very early stages, and its capability to affect the thoughts of individuals is  uncertain. Online manipulation, on the contrary, is already here and being used on millions of users of digital products and services. Considering how underdeveloped the interpretation of article 9 ECHR is with regard to freedom of thought, an intervention in this direction of the Council of Europe or of the ECtHR would be auspicable.

The interferences of manipulative design with autonomy are not limited to the individual level: in the medium and long term, the interaction of profiling and manipulative design can pose risks to the very axioms of democracy. Individual autonomy, in fact, is considered also functional to the development of the citizens. Consequently, protecting individual autonomy is fundamental also at a collective level, to fostering a healthy democratic balance.  

Both commercial and public-policy applications of manipulative design have the potential to affect democracy because, in the long term, individuals can lose their decision-making capacity; if individuals lose the ‘practice’ of taking decisions, this can reverberate at the collective level. The Council of Europe has intervened on the matter in its 2019 Declaration by the Committee of Ministers on the manipulative capabilities of algorithmic processes. The declaration contains a recommendation for Member States to regulate persuasion used in combination with AI, to protect the democratic order. First, however, it is necessary to assess where the threshold lies between undesirable and acceptable manipulative design practices. 

Finally, it is also necessary to reflect on the broader implications of manipulation in combination with the entire online architecture that permeates every aspect of our daily lives. Manipulative design leads to a power imbalance between individuals and companies, and citizens and the states. This brings attention to the legitimation of private companies, especially in the cases of public-private partnerships. The online architecture is significantly in the hands of private parties, and this affects how legislative interventions are designed and, most of all, implemented. With the Internet of Things (IoT), the blurring of the boundaries between online and offline dimensions can make manipulative design migrate from websites to our homes and streets. This sheds a new light on the importance of the positive obligations of the states to uphold and foster human rights (such as the abovementioned privacy and freedom of thought, but not only) and shows the necessity for further reflections and investigation.

The author would like to thank student assistants Jorge Constantino and Jade Baltjes for taking notes during the workshop: their excellent notes were of great use while drafting this piece.

Bio: