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The concept of 'due diligence' in the UN Guiding Principles on Business & Human Rights

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Article
13 November 2017

A rejoinder to John Gerard Ruggie & John F. Sherman, III

Author: Jonathan Bonnitcha & Robert McCorquodale, European Journal of International Law

We are grateful to John Gerard Ruggie and John F. Sherman for engaging with our art icle.1 We share their objective of more firmly grounding businesses’ respect for human rights and agree that the 2011 United Nations Guiding Principles on Business and Human Rights (Guiding Principles) have already made a significant contribution to this end. We admire their ongoing commitment to promoting the Guiding Principles and businesses’ respect for human rights. We welcome the opportunity to respond to their Reply in this constructive spirit. In this Rejoinder, we focus on three main issues raised in their Reply. The first is the extent to which it is useful to consider the way that certain concepts are used outside the Guiding Principles in order to interpret and apply the Guiding Principles. The second is the extent of businesses’ responsibility for ‘contributing’ to adverse human rights impacts. The third is Ruggie and Sherman’s mischaracterization of our central argument.

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Article
13 November 2017

A reply to Jonathan Bonnitcha & Robert McCorquodale

Author: John Gerard Ruggie & John F Sherman, European Journal of International Law

We welcome the opportunity to respond to Jonathan Bonnitcha and Robert McCorquodale’s discussion of the 2011 United Nations Guiding Principles on Business and Human Rights... When it comes to the concept of corporate human rights due diligence, however, Bonnitcha and McCorquodale stray from both. They analogize from state-based legal concepts and contexts to private sector non-legal processes and miss critical elements in the logic and provisions of the Guiding Principles. They thereby end up in a place that is quite inconsistent with, and falls short of, the Guiding Principles, while failing to reflect how key stakeholders are currently implementing them. In trying to fit everything into, or render compatible with, traditional legal forms, they inadvertently illustrate why international human rights law has had such limited effects on corporate practices and why the Guiding Principles have succeeded where conventional initiatives have failed.

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Article
13 November 2017

The concept of 'due diligence' in the UN Guiding Principles on Business & Human Rights

Author: Jonathan Bonnitcha & Robert McCorquodale, European Journal of International Law

Due diligence is at the heart of the United Nations Guiding Principles... However, due diligence is normally understood to mean different things by human rights lawyers and by business people... [H]uman rights lawyers understand ‘due diligence’ as a standard of conduct required to discharge an obligation, whereas business people normally understand ‘due diligence’ as a process to manage business risks. The Guiding Principles invoke both understandings of the term at different points, without acknowledging that there are two quite different concepts operating and without seeming to explain how the two concepts relate to one another... [T]he confusion arising from this conceptual slippage is problematic in practice... [A] business enterprise’s responsibility to respect human rights is best understood as comprising two elements: its responsibility for its own adverse human rights impacts and its responsibility for the human rights impacts of third parties with which it has business relationships... [A] business enterprise has a correlative responsibility to provide a remedy for all its adverse human rights impacts, not only those adverse human rights impacts that result from a failure to act diligently.

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