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22 Jun 2022

Claire Methven O'Brien, Völkerrechtsblog

Blog: Bounded rationality, metonymy, humility. Further arguments for a framework-style business and human rights treaty

22 June 2022

The notion of corporate human rights due diligence (HRDD) has been central to the coalescence of business and human rights as a distinct legal and policy field. Inspired by ideals of reflexive law and procedural regulation, due diligence was first given explicit formulation in the UN Guiding Principles on Business and Human Rights (UNGPs). Defined loosely in the UNGPs as an iterative cycle through which companies identify, prevent, address, and remediate risks they pose to human rights, due diligence has animated a wave of norm-making endeavours since 2011.

At first, this wave yielded guidance, such as revisions to the OECD Guidelines for MNEs, the Voluntary Principles on Security and Human Rights and Equator Principles. Quickly, however, due diligence requirements started to appear in commodity-based or thematic laws, such as the EU Conflict Minerals Regulation and s1502 of the US Dodd-Frank Act and, albeit indirectly via reporting duties, in modern slavery statutes in the UK and Australia...

Such developments hold great promise. Voluntary uptake of due diligence amongst businesses was poor, even in high risk sectors. Statutory due diligence duties, if backed by adequate support for labour rights and participation, remedies for victims, penalties and administrative enforcement might deliver transformational changes to business practices in some areas...

Yet the UNGPs’ loose definition was neither intended nor designed to provide a template for due diligence legislation. Consequently, due diligence laws such as those mentioned above embody significant divergences, for instance, regarding their personal and subject matter scope, the question of how far down the supply or value chain their requirements extend and regarding what roles ‘safe harbour’ provisions and civil liability should play within their legislative schemes...