Amicus Curiae Brief presented by
ClientEarth
21 November 2016
89. ClientEarth supports the Petitioners contention that it is most appropriate to consider
the responsibilities of the Carbon Majors in the context of the Guiding Principles,
particularly Principles 11 and 13. Specifically, Principle 13 calls on business
enterprises to "avoid causing or contributing to adverse human rights impacts
through their own activities", and:
"to seek to prevent or mitigate adverse human rights impacts that are directly
linked to their operations, products or services by their business relationships,
even if they have not contributed to those impacts."
90. This confirms that the principle is engaged when business activity contributes to
adverse human rights impacts, even though it may not be the only cause of the
adverse impact. Thus, the Guiding Principles call for the application of a test of
contributory causation, balanced by a standard of reasonableness.69 The Interpretive
Guide to the Guiding Principles (included as Annex D to this brief) supports this
conclusion, noting that a business enterprise may contribute to the impact through its
own activities - either directly or through some outside entity.70 The Interpretive
Guide gives the following examples of contributing to a human rights impact:
providing data about internet service users to a Government that uses the data to
trace and prosecute political dissidents contrary to human rights;
69
Described in the context of 'business relationships' in Principle 19 and its accompanying commentary, which states that: "[a]ppropriate action will vary
according to whether the business enterprise causes or contributes to an adverse impact, or whether it is involved solely because the impact is directly
linked to its operations, products or services by a business relationship." "Where a relationship is 'crucial' to the enterprise, ending it raises further
challenges. A relationship could be deemed as crucial if it provides a product or service that is essential to the enterprise's business...[the enterprise]
should be able to demonstrate its own ongoing efforts to mitigate the impact and be prepared to accept any consequences - reputational, financial or
legal - of the continuing connection".
70
OHCHR, The Corporate Responsibility to Protect Human Rights: An Interpretive Guide (2012).
44
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