The U.S. regulatory landscape is quickly evolving and in flux, with the Executive Branch further increasing the use of executive authority to unilaterally and rapidly transform longstanding federal practices and policies. The sudden "opening" of hitherto restricted ventures—such as commercial fishing in the Pacific Islands under U.S. jurisdiction, or the increased focus on industries important to national security, such as critical minerals—are being interpreted by some sectors as new opportunities for business. At the same time, industries that have historically been subject to a significant U.S. regulatory regime are being broadly deregulated, resulting in weaker protections for people and the environment. The result is a patchwork system that is seeking to incentivize investment with minimal safeguards and guardrails in place.
For decades now, it has been good business to respect environmental and human rights. And increasingly, stakeholders view respect for rights as obligatory corporate behavior, rather than mere expectation. Environmental and human rights factors are now integrated into a larger framework establishing responsible and sustainable business practices. Ensuring that products and their supply chains are not derived from forced labor, greenfield projects have secured a social license to operate from the communities they impact, and the lifecycle of corporate operations are free from pollution and environmental degradation, are now the assumed baselines for companies operating in a globally integrated system. When corporations have neglected this framework, the ensuing social and reputational costs have been immense.
At a time when the business case for human rights is apparent, companies that misinterpret the current move towards deregulation as a rationale to pare back their environmental and social commitments, court significant risk in the long term. Business enterprises that seek to successfully navigate this turbulent moment and rely on global supply chains should look to internationally recognized human rights principles which remain in place regardless of the status of national regulatory frameworks.
While U.S. policymaking in the current term is increasingly volatile, international law—and the human rights principles it establishes—is not. The responsibility of companies to respect human rights under international law remains constant. And, as the GBHR practice discussed in a prior blogpost, the expectations of non-government stakeholders—consumers, shareholders, impacted communities, civil society— is only growing. To meet the demands of this moment, companies should prioritize robust human rights programs that ensure their policies and practices comply with their responsibilities under international law and conduct comprehensive due diligence that addresses the complex human rights challenges of a globalized economy.
The Responsibilities of Businesses Under International Law
Since the endorsement of the U.N. Guiding Principles on Business and Human Rights (UNGPs) by the U.N. Human Rights Council in 2011, companies have been expected to follow its three-pillar "Protect, Respect, Remedy" framework. Discourse on the UNGPs has long since passed through the realm of "voluntary standards." The UNGPs take the binding standards of core international human rights treaties, including the International Bill of Human Rights and the International Labor Organization's Declaration on Fundamental Principles and Rights at Work, as the minimum foundation for business enterprises in the 21st century. Specialized instruments of international law, such as international humanitarian law, the International Bill of Rights and its Covenants, and the U.N. Declaration on the Rights of Indigenous Peoples (UNDRIP), form the foundation of the internationally recognized principles that the UNGPs call on companies to respect. As a matter of international law and a core element of modern sustainability practices, companies have the responsibility to respect human rights and remedy harms they may cause, contribute to, or are directly linked with, by way of their investment and supply chains.
The UNGPs do more than articulate expectations; they provide a practical framework for companies to structure their operations to prevent, mitigate, and remedy adverse human rights impacts. This includes crafting proactive, human rights-centered policies, and taking the responsibility to conduct comprehensive human rights due diligence seriously in any context, regardless of the status of domestic legislation and policy.
Recognizing the inherent stability and universality of international law, leading industry bodies, multistakeholder initiatives, civil society, and impacted communities, articulate their demands through the language of the UNGPs and the core human rights instruments they support. Ultimately, meeting—and surpassing—human rights responsibilities under international law protects businesses from reputational and litigation risk and provides a reliable lodestar for companies seeking to outlast the priorities of any one political movement or administration.
Critical Minerals and Indigenous Rights: A Case in Point
Critical minerals are key to the clean-energy transition and have been a priority for the current U.S. Administration since its first days, when the White House pointed to inadequacies in critical mineral production chains as the rationale for a national energy emergency. More recent executive orders call for an immediate increase in domestic critical mineral production and seek to open unilateral exploitation of critical minerals in the deep seabed for American companies. These executive orders incentivize businesses to invest in critical minerals and direct government agencies to expedite approval processes, including environmental and social reviews.
Amidst this rush to explore and exploit, key environmental and human rights concerns cannot be forgotten. Within the United States, the majority of cobalt, copper, lithium, and nickel deposits are located within 35 miles of Native American reservations. Worldwide, more than half of global critical mineral resources are on or near Indigenous lands. Whether or not domestic policy or national standards require it, companies seeking to develop critical mineral resources must follow international human rights norms and meaningfully engage with the relevant Indigenous nations as equal partners.
While executive actions may incentivize accelerated timelines, the full spectrum of human rights needs to be carefully considered. A good faith, rights-based approach aligned with the UNGPs and UNDRIP entails conducting comprehensive human rights due diligence to identify impacted communities and mitigate possible harm; developing relationships with Indigenous nations that are premised on respect, trust, and reciprocity; respecting the Indigenous right to self-determination by ensuring the meaningful participation of Indigenous nations in project design and decision making; and seeking to obtain their free, prior and informed consent, an iterative process, throughout the project lifecycle. Throughout, Indigenous nations are equal partners with the right to withhold their consent, and in the context of the United States, constitutionally recognized as sovereign.
This process is key, especially for operators in the critical minerals sector, where human rights impacts on Indigenous nations may not be immediately apparent.
For example, although mining a critical minerals deposit upstream from an Indigenous nation may not cause physical displacement, the community may face environmental impacts downstream. Apart from the tangible environmental impacts, cultural rights may be seriously implicated. This could take the form of adverse impacts on traditional subsistence practices (such as fishing or the gathering of sacred plants) and associated spiritual ceremony, pollution of culturally significant sites considered intangible cultural heritage, and even the dislocation of traditional knowledge.
Without undertaking comprehensive human rights due diligence, in close consultation and partnership with the Indigenous nation, and co-designing the project with an eye towards their consent, these significant impacts on Indigenous cultural rights may not become apparent until a critical moment of crisis. In such a context, following domestic policy alone greatly risks sowing the seeds of community conflict and causing significant ecological harm. These impacts, in turn, invite reputational and litigation risk down the road and ultimately slow down the transition to a sustainable and equitable planet.
Recognizing this inherent tension, leading industry bodies such as the International Council for Mining and Metals (ICMM) have issued statements on the crucial need to follow international norms in mining for critical minerals and advancing the renewable energy transition. In September 2024, the U.N. also issued additional guidance that calls on all actors within the world's mineral value chains to institute practices that foster an energy transition "rooted in equity and justice."
These developments underscore that international law is a vital stabilizing force. As we are witnessing in this transition—and in many other economic spheres involving the private sector—corporate respect for human rights remains, and will continue to remain, good business.
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