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21 Sep 2020

Olivier De Schutter, OpinioJuris

Commentary: The Second Revised Draft keeps human rights due diligence & legal liability separate, rightly so

"BHR Symposium: The Requirement to Practice Due Diligence–A Floor Not a Shield", 10 September 2020.

One of the innovative contributions of the Guiding Principles on Business and Human Rights, endorsed by consensus within the Human Rights Council in June 2011, was to include the practice of human rights due diligence as part of businesses’ responsibility to respect human rights — the so-called “second pillar” of the GPs. The message then was clear: companies cannot merely abstain from conduct that might lead to human rights violations; they must also proactively seek to inform themselves about the impacts of their activities...

The formalisation of the requirement to practice human rights due diligence has been central to the negotiations on a new Treaty on Business and Human Rights since their start. As the « prevention » provision of article 6 the Draft Treaty confirms...that States should adopt a regulatory framework imposing human rights due diligence on companies, backed by the threat of effective sanctions (article 6.2.)...

Even if human rights due diligence duties as prescribed under domestic legislation...are fully complied with, this should not result in a guarantee of legal immunity from civil liability claims, where it appears that the preventative measures have failed to avoid the harm from occurring. This is what the Draft Treaty now provides for, where it notes that sanctions for failure to comply with human rights due diligence obligations should be « without prejudice to the provisions on criminal, civil and administrative liability under Article 8 » (on remedies). Article 8.8 of the Draft is explicit in this regard, as it states that « Human rights due diligence shall not automatically absolve a legal or natural person conducting business activities from liability for causing or contributing to human rights abuses or failing to prevent such abuses by a natural or legal person as laid down in Article 8.7. The court or other competent authority will decide the liability of such entities after an examination of compliance with applicable human rights due diligence standards. »...