Introduction

Pursuant to Human Rights Council resolution 44/15, the United Nations Working Group on the issue of human rights and transnational corporations and other business enterprises (“Working Group”) will present a report to the UN General Assembly’s 78^th Session in October 2023 on “Extractive Sector, Just Transition and Human Rights.” In this report, the Working Group will understand Extractive Sector as the wide range of business enterprises, institutions and peoples involved in the extraction of oil, gas, solid minerals, and rare metals.

As set out in resolution 17/4, the Working Group has a mandate to promote, disseminate and implement the UN Guiding Principles on Business and Human Rights (UNGPs). The group is also mandated to exchange and promote good practices and lessons learned on the implementation of the Guiding Principles, and to assess and make recommendations thereon.

The Working Group is composed of five independent experts of balanced geographical representation appointed by the United Nations Human Rights Council. The Human Rights Council is an inter-governmental body within the United Nations system made up of 47 Member States responsible for the promotion and protection of all human rights around the globe. Experts are selected on the basis of their expertise and experience in the area of their mandate, personal integrity, independence and impartiality and objectivity. They are not employed by the United Nations and do not receive remuneration for their work. The Working Group is part of a system of so-called UN Special Procedures. Collectively, the Working Group experts bring diverse skills and experience on the advancement of business respect for human rights across a wide range of countries, issues, and sectors. Access biographies of the members of the Working Group.

Background

In response to the climate change emergency, a growing number of States, business enterprises, investors, and other stakeholders in the extractive sector worldwide have announced, or are currently developing, plans to implement net-zero emission and energy transition programs. Yet, concerns have emerged on how the design and implementation of energy transition policies and projects, especially the sourcing of critical transition minerals, may further exacerbate child labour, modern slavery, poverty, and social exclusion; impact the enjoyment of the right to a clean, healthy, and sustainable environment; worsen energy poverty levels; and constrain access to land and other resources to vulnerable and historically excluded groups. This is in part due to the multitude and complexity of human rights issues that extractive companies face. For example, the use of land for extractive projects and the resettlement of communities is particularly harmful to Indigenous Peoples, and extractive companies can also have considerable impacts on the environment and the economy of the societies in which they operate, with conflict-affected or post-conflict areas using revenue from extractive resources to fund unrest. Against this backdrop, the question arises as to how to achieve a human rights-based and just transition, i.e., a transition to a green and climate-neutral economy which is fair, inclusive, creates decent working opportunities, upholds the human rights of Indigenous Peoples and affected communities through social dialogue and stakeholder engagement, respects the sovereignty of peoples over natural resources, and leaves no one behind.

The report aims to provide practical guidance to States, business enterprises and other key stakeholders on how best to design and implement just, inclusive, and rights-based energy transition programs, investments and projects that advance the UNGPs.

In particular, the report will unpack relevant provisions of the UNGPs. The report will examine the duty of States to put in place human rights-based natural resources laws and policies that strike a balance between advancing energy transition targets and promoting responsible business conduct in the design, approval, financing, implementation, and reporting of such activities. The report will also analyse the key role played by enterprises owned or controlled by the State (SOEs) and will unpack the role of business enterprises in the extractive sector to integrate human rights into ongoing energy transition plans and programs to address adverse human rights impacts. The report will also address access to remedy by, for example, looking at the possibility of expanding dispute resolution provisions in extractive contracts, ensuring contributions of extractive sector operators to climate compensation and reparation funds, and enabling affected communities to seek remedies against investors. 

This report will build on the work previously undertaken by the Working Group, the UN Security Council and other international organisations such as OHCHR, UNEP, ILO, UNCTAD, OECD, South Centre and others concerning various dimensions of the interface between climate change, energy transition and human rights^[1]. It will also make connections with the Working Group’s previous and upcoming reports and knowledge products addressing issues such as climate change, human rights due diligence (HRDD), policy coherence, gender dimensions, state-owned enterprises, and access to remedy. 

In this context, the Working Group seeks the input of all stakeholders (including States, international organisations, national human rights institutions, civil society organisations, research centres, policy makers, academia, lawyers, law firms, arbitrators, investors, industry associations, trade unions, human rights defenders, and Indigenous Peoples) to the questions below. Please feel free to respond to all or selected questions as per expertise, relevance or focus of work.

Questions

State duty to protect human rights

1. How can States better advance human rights-compatible energy transition laws and policies that ensure responsible business conduct in all aspects of energy transition efforts and programs (e.g., including, but not limited to, design, approval, financing, implementation, and reporting of energy transition programs)?
2. Are you aware of any measures, both mandatory and voluntary, at national, regional, and international levels to foster business respect for human rights in the extractive sector, especially in the context of energy transition plans, programs and activities? If so, are these measures effectively enforced and do they provide the necessary coverage in light of evolving circumstances, including energy transition plans? Is greater clarity necessary in some areas of law and policy? What measures may reasonably correct this situation?
3. What mechanisms or processes should exist at the State level (e.g., inter-ministerial committee, ex ante human rights impact and risk assessment) to assess and ensure that extractive sector operations, including the production and distribution of transition minerals, do not impact negatively human rights? Are these measures effectively enforced and do they provide the necessary coverage in light of energy transition plans, programs and activities?
4. How do States encourage and regulate communication of energy transition efforts by business in the extractive sector, including State-owned enterprises (SOEs), to avoid the publication of misleading or unsubstantiated claims or reporting of an entity’s energy transition programs? Do these measures sufficiently ensure the adequacy, accessibility, reliability, and accuracy of information?
5. Do current concessions, contracts, and bilateral investment treaties in the extractive sector aid or constrain domestic regulatory space available to States to meet their international human rights obligations in the context of the energy transition? What further changes in key provisions and licensing/procurement processes are desirable to advance energy transition in alignment with the UNGPs?
6. What are the gaps in the development and implementation of existing National Action Plans, legislation, and domestic, regional, or international frameworks (e.g., the Paris Agreement or climate change laws) on business and human rights, particularly in relation to the extractive sector, which if addressed will advance a just and human rights-based energy transition?
7. How can energy transition policies, programs, plans and activities in one State have adverse human rights impacts outside of their territory or jurisdiction (including supply chain issues and sourcing)? What measures may reasonably correct this situation?
8. How can States harness the potential of energy transition to accomplish important policy objectives related to human rights, such as achieving local empowerment, gender equality, protection of the environment, mitigation of climate change and realising the Sustainable Development Goals?

Corporate responsibility to respect human rights 

9. What roles should business enterprises in the extractive sector play to integrate human rights into ongoing energy transition plans and programs to address adverse human rights impacts? Please provide examples if possible.
10. Are human rights provisions, for example in existing concessions, contracts, and bilateral investment treaties, effective in encouraging businesses in the extractive sector, including investors, to respect all internationally recognised human rights? If not, what should be done to strengthen their efficacy?
11. Have you seen extractive sector investors play a role in preventing and mitigating, or in exacerbating, negative impacts of energy transition efforts on human rights? Should investors be required to conduct gender responsive HRDD in meaningful consultation with local communities, civil society organizations, Indigenous Peoples, and human rights defenders? What remediation responsibility should investors have?
12. What role can the informal economy (e.g., artisanal and small-scale mineral exploitation, including supply chains) play in advancing a just and human rights-based energy transition?
13. Should concessions, contracts, and legislation require all business enterprises producing, purchasing, processing, and distributing transition minerals to apply and implement human rights-based impact and risk assessments and due diligence standards, including gender-responsive HRDD and heightened HRDD for conflict-affected areas? If so, how could such processes ensure meaningful participation of impacted communities, particularly vulnerable and historically excluded groups? 
14. How could extractive sector associations, higher education institutions and other stakeholders promote awareness and encourage human rights-compatible business practices (e.g., addressing greenwashing and green scamming practices)?

Access to remedy

15. What measures and mechanisms should be provided by extractive sector legislation, bilateral investment treaties, concessions, and contracts to allow individuals or communities affected by extractive activities to seek effective remedy for business-related human rights abuses? What remedies are best suited for this sector?
16. Please provide examples of steps taken by States to investigate, punish and redress business-related human rights abuses related to the extractive sector in the context of energy transition projects. Are the steps and redress mechanisms effective in terms of both process and remedial outcomes?
17. Are you aware of any cases submitted to judicial and/or non-judicial instances (e.g., national human rights institutions, national contact points, mediation, etc.) regarding business-related human rights abuses in the extractive sector, particularly in the context of energy transition projects?
18. Are current dispute resolution provisions and frameworks in the extractive sector “fit for purpose” to address complaints related to human rights abuses linked to extractive activities and energy transition projects? If not, what are the alternatives for a legitimate, transparent, and effective dispute resolution system to address such complaints? 

Good practices and other comments 

19. Please provide examples of good practices regarding the integration of human rights issues in the extractive sector in the context of the energy transition.
20. What specific renewable energy policies, practices and safeguards should be adopted by States and business so that energy transition does not have adverse effects on human rights?
21. Are there any specific recommendations to States, businesses (including investors), civil society, UN bodies and National Human Rights Institutions that would help further advance a just and human rights-based energy transition in the extractive sector? Any other comments or suggestions about the forthcoming report are also welcome.  

[1] UN Security Council Resolution on the Democratic Republic of Congo, Resolution 1952 (2010) https://www.un.org/securitycouncil/s/res/1952-%282010%29; SR Indigenous Peoples on extractives A/HRC/24/41; SR toxics on extractives A/HRC/21/4; SR climate change on promotion and protection of human rights in the context of climate change A/77/226; SR environment on climate change A/HRC/31/52; United Nations Principles for Responsible Investment: Human Rights and the Extractive Industry https://www.unpri.org/download?ac=1655