In an era of climate change disruption, rising sea levels and environmental damages, the current regulatory regime on the relationship between business and the environment seems rather inconsistent.

However, from a broader perspective, and when taking into account both private and public initiatives, this lacuna is somehow bridged. Beyond the famous 1992 Rio Declaration, the Kyoto Protocol and the 2015 COP21 Paris Agreement, the sources of environmental protection can be divided in four different categories.

The first group includes the initiatives and instruments of international organisations. The UN has recently started a discussion on business and sustainable development between public and private actors. The 2000 UN Global Compact and the 2011 Human Rights Council’s (HRC) Guiding Principles on Business and Human Rights highlight the role of enterprises in identifying, preventing, mitigating and accounting for their impact on the environment. With the same purpose, in 2014 the HRC adopted resolution 26/9, establishing an intergovernmental working group to elaborate a binding instrument regulating the activities of transnational corporations. In 2011, the OECD had also amended its Guidelines for Multinational Enterprises to implement best practices for sustainable development.

The second group refers to investment treaties. Although most of them do not explicitly address non-commercial values, some now include environmental clauses (e.g., 2012 US Model BIT, 2004 Canada Model BIT, 2008 Colombia Model BIT). The environment is also protected in recent draft multilateral agreements, such as CETA, TTIP and TPP.

Apr-Jun 2016 issue

ICC International Court of Arbitration