Reimagining the Renewable Energy Transition: The Potential for Mandatory Corporate Due Diligence to Ensure Respect for the Right to Free, Prior, and Informed Consent

Abstract

The urgency of the climate crisis demands a rapid transition away from fossil fuels and toward renewable energy. However, renewable energy infrastructure projects and mining for the minerals required for renewable energy systems have resulted in reports of human rights violations and clashes with local communities living on and adjacent to the lands where these projects are taking place. At the crux of several of the clashes with local communities are claims that renewable energy projects and land acquisitions have been initiated without meaningful community participation or respect for indigenous peoples' or local communities' right to free, prior, and informed consent (FPIC) to these projects. Indigenous peoples' - and increasingly also local communities' -right to FPIC for development projects that will affect or take place on their land is solidifying as a norm of international human rights law. Still, the implementation and enforcement of the right to FPIC have faced challenges, as indigenous peoples and local communities often lack the political power to enforce these obligations without governmental backing, particularly when confronting powerful multinational corporate interests or when operating in countries with weak rule of law. Given the inadequacies of existing voluntary corporate commitments to protect human rights, legislative enactments to ensure that companies comply with human rights standards -including respecting the right to FPIC - are necessary. Mandatory corporate human rights due diligence laws, if these laws codify robust FPIC obligations and create stringent enforcement mechanisms, present a unique opportunity to strengthen the right to FPIC for indigenous peoples and, potentially, to extend this right to other local and marginalized communities.

This Note analyzes the state of legal jurisprudence on the right to FPIC in renewable energy development and the ways in which the enactment of mandatory corporate human rights due diligence laws could provide a novel mechanism to enforce the right to FPIC in the renewable energy sector. First, this Note reviews the historical development of the right to FPIC in international human rights law. Second, this Note provides a novel comparative analysis of how courts and quasi-judicial decision-making bodies have applied the right to FPIC to the renewable energy sector through four legal case studies. Third, this Note explores the current and proposed implementation and enforcement mechanisms of mandatory corporate human rights due diligence laws and the potential for these mechanisms to strengthen the right to FPIC. Finally, given identified challenges and drawing from best practices in existing and proposed laws, the Note sets out five recommendations for including the right to FPIC in mandatory corporate human rights due diligence laws in the future.