1Case No: A1/2016/2502 & 2504IN THE SUPREME COURT OF THE UNITED KINGDOMON APPEAL FROM THE COURT OF APPEAL (CIVIL DIVISION)BETWEEN:(1) VEDANTA RESOURCES PLC(2) KONKOLA COPPER MINES PLCAppellants-andDOMINIC LISWANISO LUNGOWE AND OTHERSRespondents-and-(1) THE INTERNATIONAL COMMISSION OF JURISTS(2) THE CORPORATE RESPONSIBILITY (CORE) COALITION LTDProposed Interveners_______________________________________________________DRAFT STATEMENT IN INTERVENTION_______________________________________________________References in this Statement in intervention are in the following form:Judgment of the Court of Appeal: [Judgment ¶x] where x refers to the paragraph inquestionAppellants’ Grounds of Appeal: [A Grounds ¶x]2INTRODUCTION AND SUMMARY1. The International Commission of Jurists and The Corporate Responsibility (CORE)Coalition Ltd (together “the Interveners”)1 intervene in this appeal in order to assist theCourt in relation to a discrete set of materials not addressed by the parties before theCourt of Appeal.2. These submissions address the issue of whether the First Appellant (“Vedanta”) at leastarguably owed the Claimants a duty of care, and are relevant to Grounds 1(a) and 4 ofthe Appellants’ Grounds of Appeal. Specifically, the Interveners submit that the Court ofAppeal’s conclusion that Vedanta arguably owed the Claimants a duty of care[Judgment ¶¶67-92] is supported by (i) international standards regarding theresponsibilities of business enterprises in relation to human rights and environmentalprotection; (ii) material published by the United Kingdom Government with the aim ofimplementing those international standards; and (iii) comparative law jurisprudence. TheCourt of Appeal’s judgment does not refer to these materials, but the Interveners submitthat they provide further support for its conclusion on the duty of care issue.3. The Appellants argue their appeal on the basis that “the Caparo principles” or “theCaparo requirements” are not satisfied in this case.2 The Interveners are, however,mindful that the Supreme Court has emphasised that one should not reach too hastilyfor the factors famously referred to in Caparo Industries plc v Dickman [1990] 2 AC 605at 617H-618A, and that “the characteristic approach of the common law… is to developincrementally and by analogy with established authority”: Robinson v Chief Constableof West Yorkshire Police [2018] UKSC 4, [2018] 2 WLR 595 (per Lord Reed at ¶¶21-27,with the quotation at ¶27); NRAM Ltd v Steel [2018] UKSC 13, [2018] 1 WLR 1190 (per1 The Interveners are two of the world’s leading non-governmental organisations in the field ofinternational legal standards and comparative law.The International Commission of Jurists is a globally esteemed NGO, working to advanceunderstanding of and respect for the rule of law and the protection of human rights throughoutthe world. It is composed of over 60 eminent jurists, representing different justice systems. Itplays a leading role in the development and implementation of international human rightsstandards. It has consultative status at two of the United Nations Councils as well as the Councilof Europe and the African Union.The Corporate Responsibility (Core) Coalition Ltd is a UK-based civil society coalition composedof a wide range of partner organisations including Amnesty International, Oxfam, Christian Aidand UNICEF UK. It works, with its partner organisations, to promote a clearer and strongerregulatory framework governing the global operations of UK companies.2 [A Grounds ¶¶12, 14, 16].3Lord Wilson at ¶22); Darnley v Croydon Health Services NHS Trust [2018] UKSC 50,[2018] 3 WLR 1153 (per Lord Lloyd Jones at ¶15).4. The Interveners consider that there is no need to reach for Caparo in this case. The dutycontended for by the Claimants is not novel, or is at least closely analogous toestablished situations in which a duty of care applies:(a) The essence of the Claimants’ case on the duty of care issue is understood to bethat Vedanta owed them a duty to exercise reasonable care in monitoring andcontrolling the Second Appellant (“Konkola”), in order to prevent Konkola’sactivities from causing harm to them by virtue of the unusual level of control,direction and knowledge exercised by Vedanta in relation to the allegedly harmfuloperations.(b) In Smith v Littlewoods Organisation Ltd [1987] 1 AC 241 (HL), Lord Goff noted (at271-272) that there are significant exceptions to the position that there is nogeneral duty of care to prevent a third party from causing harm to others. Thoseexceptions include (i) where there is “an imposition or assumption of responsibilityupon or by the defender”; and (ii) where there is “a special relationship betweenthe defender and the third party, by virtue of which the defender is responsible forcontrolling the third party”. That a duty of care will arise in such circumstances isillustrated by (for example) cases in which it has been held that parents and othersresponsible for supervising children owe a duty to exercise reasonable care toprevent them from causing harm to third parties: see, e.g. Smith v Leurs [1945] 70CLR 256 (High Court of Australia);3 Carmarthenshire County Council v Lewis[1955] AC 549 (HL); Home Office v Dorset Yacht Co Ltd [1970] AC 1004 (HL).(c) The duty for which the Claimants contend falls within the established categoriesreferred to by Lord Goff. Just as a human parent’s control over, and responsibilityfor, his or her child may give rise to a duty to take reasonable care to prevent thechild from harming others, so may a corporate parent owe a like duty based on itscontrol over, and responsibility for, a subsidiary. See Chandler v Cape plc [2012]1 WLR 3111, in which Arden LJ (as she then was) reached such a conclusion, onthe basis of the established principles in Smith v Littlewoods and Dorset Yacht(¶¶62-70, 80).3 Cited with approval by Lord Goff in Smith v Littlewoods at 272F.4(d) Vedanta has (as set out more fully below) stated that its “sustainable developmentagenda” has been developed in line with the international standards to which theInterveners draw the Court’s attention. Those standards are therefore relevant tothe factual question of whether Vedanta controlled and/or had assumedresponsibility for the activities of Konkola.5. In the alternative, if this is a “novel type of case, where established principles do notprovide an answer”, the Court will need to consider whether the duty of care contendedfor is (at least arguably) “fair, just and reasonable”.4 In making such an assessment, theCourt may (and indeed should) have regard to: (i) domestic and international standardsrelevant to the responsibilities of parent companies in relation to the activities of theirsubsidiaries; and (ii) comparative law jurisprudence on the issue.6. This Statement in Intervention adopts the following structure:(a) Section 1 identifies relevant domestic materials, including the United KingdomGovernment publication Good Business: Implementing the UN Guiding Principleson Business and Human Rights (“Good Business”). As the title of that documentindicates, it draws on, and seeks to give effect to, international standards. TheAppellants recognise that domestic Government guidance is relevant to theassessment of whether Vedanta owed a duty of care to the Claimants [A Grounds¶12]. If Good Business is to be properly understood, it must be considered in lightof the international standards that it seeks to implement.(b) Section 2 identifies the relevant international materials, including the UN GuidingPrinciples on Business and Human Rights (“UNGPs”), the Ten Principles of theUN Global Compact, and the OECD Guidelines for Multinational Enterprises(“OECD Guidelines”). These international materials are relevant to the duty ofcare issue, whether or not the duty for which the Claimants contend is consideredto be a novel one. (c)Section 3 identifies an emerging body of comparative law jurisprudenceconsistent with the proposition that a parent company may owe a duty to exercise reasonable care in monitoring and controlling its subsidiaries, in order to preventthem from causing harm to others.4 Robinson, per Lord Reed at ¶27.57. In short, the Interveners submit that, whether or not this is a novel duty situation, GoodBusiness, international standards and comparative law jurisprudence provide additionalsupport to the Court of Appeal’s conclusion that Vedanta (at least arguably) owed a dutyof care to the Claimants.SECTION 1: DOMESTIC STANDARDS CONCERNING BUSINESS, HUMAN RIGHTS ANDTHE ENVIRONMENT8. It is common ground between the Interveners and the Appellants that the considerationsrelevant to whether Vedanta owed the Claimants a duty of care include United KingdomGovernment publications. The Appellants submit that:5“… the duty of care claims must be considered in the relevant context, with proper regardto the fundamental legal principle of corporate separateness (Salomon v Salomon andAdams v Cape), the obligations on companies set out in the Companies Acts, modernlisting requirements, group reporting norms and government guidance on bestpractice.” (emphasis added)9. The Interveners make four observations in this regard.10. First, the United Kingdom Government’s policy in relation to business and human rightsexpressly draws upon relevant international standards:(a) As noted above, the key domestic document on the standards that theGovernment expects of UK-domiciled companies is Good Business.6 That thisdocument seeks to give effect to the UNGPs is plain from its full title: GoodBusiness: Implementing the UN Guiding Principles on Business and HumanRights (updated May 2016). The UNGPs are not, however, the only set ofinternational standards on which Good Business draws; it also refers to variousother international instruments that the UK has endorsed, including the OECDGuidelines (see paragraph 15).(b) In consequence, the United Kingdom Government publications that should (as theAppellants recognise) inform the Court’s assessment of whether Vedanta (at leastarguably) owed a duty of care must be considered in the light of the relevant5 [A Grounds ¶12].6https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/522805/Good_Business_Implementing_the_UN_Guiding_Principles_on_Business_and_Human_Rights_updated_May_2016.pdf6international standards in this field. The implications of such internationalstandards for this case are addressed further in section 2 below.11. Second, Good Business stresses the importance of victims being able to secure accessto justice in respect of wrongdoing by UK-based business enterprises both domesticallyand overseas, and indicates that such persons should have access to remedies throughthe judicial mechanisms of the UK itself:7“The UK has a range of judicial mechanisms that help to support access to remedy forhuman rights abuses by business enterprises both at home and overseas. This includes:…. Avenues to pursue civil law claims in relation to human rights abuses by businessenterprises.” (underlining added; bold type as per the original)12. Third, Good Business recognises that human rights and environmental issues areintertwined. A number of the examples of good practice set out in Good Business referto the importance of environmental protection and environmental impacts, whenconsidering compliance with the UNGPs.8 The attention paid to environmental issues inGood Business also reflects the OECD Guidelines, which contain a whole chapter onenvironmental protection (see further below).13. Fourth, the Companies Acts, to which the Appellants refer in the passage quoted atparagraph 8 above, impose specific obligations in relation to human rights and theenvironment:(a) Section 414A of the Companies Act 2006 provides that “The directors of acompany must prepare a strategic report for each financial year of the company”.Section 414A(3) provides that, where there is a parent company and subsidiarieswith consolidated financial accounts, the directors of the parent company mustprepare a strategic report in respect of the corporate group. Section 414C(7)requires that the strategic report of a quoted company must include informationabout “environmental matters (including the impact of the company’s business onthe environment)” and “social, community and human rights issues”.9 Sections7 Ibid, p. 20.8 See the examples on p. 19 (concerning the Myanmar Centre for Responsible Business in Burma,and its role in shaping the debate concerning environmental impacts) and p. 23 (concerning theWorld Wildlife Fund’s complaint about environmental damage associated with oil exploration inVirunga National Park in the Democratic Republic of Congo).9 Sections 414A-414C were inserted into the Act in 2013. The Government has stated that part ofthe purpose of including these provisions was “to ensure that directors of quoted companiesconsider human rights issues when making their annual strategic reports”: Good Business, p.7.The Financial Reporting Council has published Guidance on the Strategic Report (July 2018):7414CA and 414CB also impose obligations on certain kinds of company (e.g.companies whose shares are traded on regulated markets) to include similarinformation in a strategic report.(b) Vedanta’s Annual Report for 2017-18 – which provides consolidated financialstatements for Vedanta’s group companies – includes a substantial section onsustainability and environmental matters.10 This is consistent with Vedanta’sobligation to report on the environmental impacts that it (i.e. Vedanta Resourcesplc) has. The Annual Report does not, however, confine its consideration toimpacts within the UK, and describes steps that Vedanta has taken to protect theenvironment in other countries where it operates through non-UK subsidiaries.Indeed, the Annual Report refers on several occasions to Konkola, and includes a“Case Study” about how the quality of the water discharged from Konkola’s mineshad been improved following Vedanta’s acquisition of the company.11(c) Irrespective of whether such obligations and statements would lead to theimposition of a duty of care in every case, it is the Interveners’ contention that theymust at least be relevant to a Court’s assessment of whether a parent company(here Vedanta) arguably has control over a subsidiary (here Konkola), and hasassumed responsibility for the environmental impacts of its operations.SECTION 2: INTERNATIONAL STANDARDS CONCERNING BUSINESS, HUMAN RIGHTSAND THE ENVIRONMENTInternational standards14. The key international standards regarding the responsibilities of multinationalbusinesses in the fields of human rights and environmental protection include theUNGPs, the OECD Guidelines and the UN Global Compact.https://www.frc.org.uk/getattachment/fb05dd7b-c76c-424e-9daf-4293c9fa2d6a/Guidance-onthe-Strategic-Report-31-7-18.pdf and see especially pages 31-34. 10Seehttps://www.vedantaresources.com/VedantaDocuments/vedanta_resources_2018ar_online_ver sion.pdf. Vedanta delisted from the London Stock Exchange in October 2018.11 See pp. 51 and 88-91.815. The UNGPs were endorsed by a consensus of the United Nations Human Rights Councilthat included the United Kingdom,12 and are considered by many States and businessesto be a globally authoritative standard on businesses’ human rights responsibilities.13The key provisions of the UNGPs include the following:(a) Guiding Principle 11 provides:“Business enterprises should respect human rights. This means that they should avoidinfringing on the human rights of others and should address adverse human rightsimpacts with which they are involved.” (b)The official Commentary to the UNGPs (which is contained within the UNGPsthemselves) notes: “The responsibility to respect human rights is a global standard of expected conductfor all business enterprises wherever they operate. It exists independently of States’abilities and/or willingness to fulfil their own human rights obligations, and does notdiminish those obligations. And it exists over and above compliance with national lawsand regulations protecting human rights.”1416. The UN Global Compact is a UN initiative to encourage businesses worldwide to adoptsustainable and socially responsible policies, and to report on their implementation.Vedanta has signed up to the Compact, as have in excess of 13,000 businesses fromover 160 countries. The Compact has Ten Principles, which include:15“Principle 1: Businesses should support and respect the protection of internationallyproclaimed human rights; andPrinciple 2: make sure that they are not complicit in human rights abuses.…Principle 7: Businesses should support a precautionary approach to environmentalchallenges;Principle 8: undertake initiatives to promote greater environmental responsibility; andPrinciple 9: encourage the development and diffusion of environmentally friendlytechnologies.”17. The OECD Guidelines are a set of recommendations addressed by the governments ofall OECD member states (including the UK) and various other countries to “multinational12 UN HRC Resolution 17/4 (2011).13 See Zeid Ra’ad Al Hussein, then UN High Commissioner for Human Rights, November 2015:http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=16760&LangID=E. 14UNGPs, Commentary to Guiding Principle 11https://www.ohchr.org/Documents/Publications/GuidingPrinciplesBusinessHR_EN.pdf15The Ten Principles are set out at https://www.unglobalcompact.org/what-is-gc/mission/principles.The participants in the UN Global Compact are listed at https://www.unglobalcompact.org/what is-gc/participants9enterprises” operating in or from those countries.16 The OECD Guidelines includespecific chapters on both human rights and environmental protection.18. The International Council on Mining and Metals (“ICMM”) has also published sectorspecific guidance for extractive industries. This guidance reflects a recognition within themining community of the responsibilities of businesses in that sector in relation to humanrights and the environment. Relevant provisions of the ICMM guidance include thefollowing:(a) The ICMM’s Sustainable Development Framework provides that members will:17“Implement a management system focused on continual improvement of the healthand safety of employees, contractors and people in the communities where we operate.…Pursue continual improvement in environmental performance issues, such as waterstewardship, energy use and climate change.”(b) The ICMM’s Statement on Human Rights stresses that “respect for human rightsis a key aspect of sustainable development, and a baseline expectation for allbusinesses…”18(c) The ICMM’s Position Statement on Water Stewardship states:19“Water is a precious shared resource with high social, cultural, environmental andeconomic value. Access to water has been recognised as a right; integral to wellbeingand livelihoods and the spiritual and cultural practices of many communities. It is alsoessential to the healthy functioning of ecosystems and the services they provide.”19. The ICMM represents a large proportion of the mining sector. Its members include 27 ofthe leading companies in the sector and 30 industry associations, including theInternational Copper Association (which has 37 companies as members). Neither of theAppellants is a member, but: (i) as set out below, Vedanta publicly states that its“sustainable development agenda” has been “developed in line” with the standards setby the ICMM; and (ii) the guidelines produced by this sector-specific body in any event16 OECD Guidelines, Foreword http://www.oecd.org/daf/inv/mne/48004323.pdf17 ICCM Sustainable Development Framework Principles 5 and 6, https://www.icmm.com/engb/about-us/member-commitments/icmm-10-principles/the-principles 18ICMM Statement on Human Rights, https://www.icmm.com/en-gb/society-and-theeconomy/mining-and-communities/human-rights19https://www.icmm.com/water-ps 10offer a benchmark against which the conduct of an international mining enterprise mayreasonably be assessed.Observations on the significance of such standards20. The Interveners make four points regarding the significance of such internationalstandards.21. First, Vedanta itself has recognised the relevance to it of such standards: (a)The Vedanta Resources Plc website describes Vedanta’s commitment toSustainable Development and Community, and states:20 “As a diversified natural resources company, Vedanta is committed to deliveringsustainable and responsible growth, which creates value for both our shareholders andour stakeholders.Our sustainable development agenda is built on four pillars – Responsible Stewardship;Building Strong Relationships; Adding and Sharing Value; and StrategicCommunications – developed in line with our core values, internal and externalsustainability imperatives (such as materiality), UNGC’s 10 principles, UnitedNations’ SDGs and standards set by International Finance Corporation (IFC),ICMM and OECD.” (emphasis added)(b) Vedanta presumably does not contend that it gives effect to its “sustainabledevelopment agenda” directly through the work of the small staff that it employs toattend to “regulatory and listing obligations”.21 Rather, when Vedanta says that itpursues a “sustainable development agenda”, this reflects that it does so throughits subsidiaries: Vedanta is able to do so because it has control over itssubsidiaries, and is responsible for monitoring and directing them.22. Second, the international standards identified above do not confine the responsibilitiesof a parent company to the actions of its own direct employees: (a)The UNGPs apply to “all business enterprises, both transnational and others,regardless of their size, sector, location, ownership and structure”.22 Guiding Principle 14 emphasises that “The responsibility of business enterprises to respect 2021https://www.vedantaresources.com/Pages/Overview.aspx (viewed on 19 October 2018).[A Grounds ¶16] states that Vedanta has 19 employees. 22 UNGPs, page 1.11human rights applies to all enterprises regardless of their size, sector, operationalcontext, ownership and structure”.(b) The reference to “structure” indicates that the drafters of the UNGPs selected theterm “business enterprises” in order to encompass all forms in which a businessmay be organised, including corporations, unincorporated associations,partnerships and groups. That the UNGPs treat a parent company as part of awider “enterprise”, rather than a discrete enterprise in itself, is plain from theCommentary to Guiding Principle 2, which provides that a State may place“requirements on ‘parent’ companies to report on the global operations of theentire enterprise”.(c) Guiding Principle 13 of the UNGPs provides:“The responsibility to respect human rights requires that business enterprises:(a) Avoid causing or contributing to adverse human rights impacts throughtheir own activities, and address such impacts when they occur;(b) Seek to prevent or mitigate adverse human rights impacts that are directlylinked to their operations, products or services by their businessrelationships, even if they have not contributed to those impacts.”(d) The responsibilities of a “business enterprise” are thus not limited to aresponsibility to avoid causing or contributing to adverse human rights impactsthrough the enterprise’s own activities: business enterprises are also responsiblefor taking steps to prevent or mitigate adverse impacts to which the enterprise’sown operations do not contribute. A fortiori, the responsibilities of an entity at thepinnacle of a business enterprise must include ensuring that the activities ofsubordinate entities within the same enterprise do not have negative human rightsimpacts.(e) Likewise, the OECD Guidelines are intended for “multinational enterprises”, andare “addressed to all the entities within the multinational enterprise (parentcompanies and/or local entities)”.23 The Commentary on the “General Policies”section of the OECD Guidelines states:“8. The Principles call on the board of the parent entity to ensure the strategic guidanceof the enterprise, the effective monitoring of management and to be accountable to theenterprise and to the shareholders, while taking into account the interests ofstakeholders…9. The Principles extend to enterprise groups, although boards of subsidiaryenterprises might have obligations under the law of their jurisdiction of incorporation.23 See OECD Guidelines, Concepts and Principles, ¶4.12Compliance and control systems should extend where possible to these subsidiaries.Furthermore, the board’s monitoring of governance includes continuous review ofinternal structures to ensure clear lines of management accountability throughout thegroup.”(f) Similarly, the principles on which the UN Global Compact operates assume theresponsibility of a parent company for its subsidiaries. The Compact’s websiteexplains:24“The UN Global Compact applies the leadership principle. If the CEO of a company’sglobal parent (holding, group, etc.) embraces the Ten Principles of the UN GlobalCompact by sending a letter to the UN Secretary-General, the UN Global Compact willpost only the name of the parent company on the global list assuming that allsubsidiaries participate as well.”23. Third, the international standards indicate that a reasonable and responsible enterprisewill take proper steps to: (i) conduct due diligence as to the risks of adverse impacts onhuman rights and the environment; (ii) prevent or mitigate the risks of such adverseimpacts; and (iii) remediate such adverse impacts as may occur. Relevant provisionsunder each of those three heads are identified below.(a) Human rights and environmental due diligence.(1) The UNGPs state:“In order to identify, prevent, mitigate and account for how they address theiradverse human rights impacts, business enterprises should carry out humanrights due diligence. The process should include assessing actual and potentialhuman rights impacts, integrating and acting upon the findings, trackingresponses, and communicating how impacts are addressed.”25(2) The OECD Guidelines make much the same point: “due diligence can helpenterprises observe their legal obligations on matters pertaining to theOECD Guidelines.”26 In the specific context of environmental impacts, theGuidelines stress the importance of ex ante assessment.27(3) The Office of the High Commissioner for Human Rights (“OHCHR”) hasdefined human rights due diligence as: “…an ongoing management process 2425https://www.unglobalcompact.org/about/faqGuiding Principle 17. 26 p. 18. The OECD has recently published extensive advice on due diligence: OECD Due DiligenceGuidance for Responsible Business Conduct (2018), http://mneguidelines.oecd.org/OECD-DueDiligence-Guidance-for-Responsible-Business-Conduct.pdf27 See ¶¶63-67 of the Commentary to the Guidelines.13that a reasonable and prudent enterprise needs to undertake, in light ofits circumstances (including sector, operating context, size and similarfactors) to meet its responsibility to respect human rights” (emphasisadded).28 This reference to the standards applicable to a “reasonable andprudent enterprise” would be of particular significance if the Court were toconclude that the duty contended for is novel, such that there is a need toconsider what is “fair, just and reasonable”.29(b) Prevention or mitigation of risks of adverse impacts on human rights and theenvironment.(1) The OECD Guidelines state that enterprises should “… take due account ofthe need to protect the environment, public health and safety, and togenerally conduct their activities in a manner contributing to the wider goalof sustainable development… Maintain contingency plans for preventing,mitigating and controlling serious environmental and health damage fromtheir operations.”30(2) The UNGPs use similar language to similar effect, referring to theresponsibility of business enterprises to (i) “avoid causing or contributing toadverse human rights impacts through their own activities, and address suchimpacts when they occur”; and (ii) “Seek to prevent or mitigate adversehuman rights impacts that are directly linked to their operations, products or28 Office of the UN High Commissioner for Human Rights, The Corporate Responsibility toRespect Human Rights: An Interpretive Guide (OHCHR, 2012) at 4.29 The similarity between this language and that of tortious liability has been noted by severalcommentators. See, for example: (i)Doug Cassel, ‘Outlining the Case for a Common Law Duty of Care of Business toExercise Human Rights Due Diligence’ (2016) 1 Business and Human Rights Journal 179 and Cees Van Dam ‘Tort Law and Human Rights: Brothers in Arms – On the Roleof Tort Law in the Area of Business and Human Rights’ (2011) Journal of European TortLaw 221.(ii) The Framework Report, which preceded the UNGPs, defines human rights duediligence as a standard of conduct by referring to the definition of due diligence inBlack’s Law Dictionary: “the diligence reasonably expected from, and ordinarilyexercised by, a person who seeks to satisfy a legal requirement or discharge anobligation” : Report to the UN Human Rights Council ‘Protect, Respect and Remedy: aFramework for Business and Human Rights’ (7 April 2008), UN Doc A/HRC/8/5,available at http://www.reports-and-materials.org/Ruggie-report-7-Apr-2008.pdf para25.30 Chapter 6, opening paragraph and ¶5.14services by their business relationships, even if they have not contributed tothose impacts.”31(3) Principle 7 of the UN Global Compact is that “Businesses should support aprecautionary approach to environmental challenges.”(4) Similarly, the ICMM’s Water Stewardship Framework states that membersshould “Understand the social, cultural, economic and environmentalvalue of water at the catchment scale to identify material waterstewardship risks and provide context for corporate and operationalwater management.”32(c) Remediation.(1) The General Policies, within the OECD Guidelines, stress the importance ofremediation: “Potential impacts are to be addressed through prevention ormitigation, while actual impacts are to be addressed through remediation.”33(2) Similarly, the UNGPs devote an entire section to “Access to Remedy”, andprovide that: “Where business enterprises identify that they have caused orcontributed to adverse impacts, they should provide for or cooperate in theirremediation through legitimate processes.”3424. Fourth, recognition of a duty of care on the part of parent companies is consistent withthe UK’s obligations under treaties to which it is a party:(a) Principle 26 of the UNGPs provides that “States should take appropriate steps toensure the effectiveness of domestic judicial mechanisms when addressingbusiness-related human rights abuses, including considering ways to reduce legal,practical and other relevant barriers that could lead to a denial of access toremedy”. The Commentary on this Principle identifies that one of the barriers thatStates should address is where “The way in which legal responsibility is attributed31 Principle 13.32 ICMM’s Water Stewardship Framework ,https://www.icmm.com/website/publications/pdfs/water/2014_water-stewardship-framework.pdfp.3.33 Commentary to General Policies ¶ 14.34 Principle 22.15among members of a corporate group under domestic…civil laws facilitates theavoidance of appropriate accountability”.(b) Under the International Covenant on Economic, Social and Cultural Rights, theUK has agreed (inter alia) to take steps necessary for “the improvement of allaspects of environmental and industrial hygiene”.35 The UN Committee onEconomic, Social and Cultural Rights has said the following in its GeneralComment on State obligations under the Covenant in the context of businessactivities (emphasis added):36(1) “The obligation to protect entails a positive duty to adopt a legal frameworkrequiring business entities to exercise human rights due diligence in order toidentify, prevent and mitigate the risks of violations of Covenant rights, toavoid such rights being abused, and to account for the negative impactscaused or contributed to by their decisions and operations and those ofentities they control on the enjoyment of Covenant rights” (¶16).(2) “The extraterritorial obligation to protect requires States parties to takesteps to prevent and redress infringements of Covenant rights thatoccur outside their territories due to the activities of business entitiesover which they can exercise control, especially in cases where theremedies available to victims before the domestic courts of the State wherethe harm occurs are unavailable or ineffective” (¶30).(3) “In discharging th
