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12 Apr 2021

Mark Taylor, University of Oslo

Commentary: Mandatory Human Rights Due Diligence in Norway – A Right to Know

"Mandatory Human Rights Due Diligence in Norway – A Right to Know", 12 April 2021

The Norwegian government last week proposed a new Act that would require thousands of the country’s largest companies (estimated at more than 8000 in total) to disclose what measures they take to ensure respect for human rights in their value chains. The human rights due diligence standards applied in the proposed law are harmonised with the global standards being applied in other jurisdictions, but the proposal also deploys a unique approach to transparency and regulatory oversight.

Proposition 150 L (2020-2021 only available in Norwegian) ‘Act on business transparency and work with fundamental human rights and decent work’ – or the Transparency Law for short –  is the latest in a series of so-called mandatory due diligence  initiatives that have sprung up across a number of jurisdictions in recent years. The proposed Act is based on the work of a government-appointed committee, which consulted with civil society, labour and business, and proposed a draft law in 2019 (full disclosure: the author was a member of that committee). The Norwegian proposal responds to advocacy by civil society and business organisations, including campaigning by Future in Our Hands dating back to the aftermath of the Rana Plaza tragedy.

In common with most such proposals, the Norwegian Act is designed to promote corporate respect for human rights, especially in the complex value chains that characterise our contemporary systems of production and consumption...

...All the key HRDD elements are present: the proposal is concerned with negative impacts by business activity on all rights and freedoms; companies are expected to conduct assessments of potential negative impacts on rights and take action in response to identified risks; companies should track such efforts and cooperate in remedies...

...The proposal would not create a legal duty to respect human rights under Norwegian law. But it does the next best thing. It makes clear that business is expected to respect human rights, in compliance with international standards. It draws on the OECD Guidelines and the UNGPs as the basis for a harmonized approach to due diligence as the standard of compliance. It then embeds that standard in domestic law and uses transparency – including the rights of individuals to know about corporate impacts – to regulate business Activity.

This approach draws on the best traditions of Norwegian regulation, in particular a willingness to create mechanisms that enable organized workers, consumers, media and businesses to activate state regulators to ensure compliance or improve performance in meeting ethical standards. The Norwegian proposal draws on the global movement towards due diligence as a component of corporate responsibility. Yet, it proposes a new twist – a right to information and duty to disclose. This innovative addition is reminiscent of freedom of information acts, (FoIAs) which enable citizens to demand information from their governments. It is fitting that in this age of global capital, we empower people to ask concrete questions about the ethics of corporations that govern so much of our lives...

...As the debates around sustainability due diligence evolve in Europe, and as elections in Norway draw near, there is an opening here that demands attention.