EU Legislation on Corporate Human Rights and Environmental Due Diligence: Perspectives from Latin America
This post was contributed to by the Civil Society Focal Group on Business & Human Rights in Mexico, formed in 2014 and comprising of:
- Business & Human Rights Resource Centre (BHRRC)
- Centro Mexicano de Derecho Ambiental (CEMDA)
- Oxfam Mexico
- Project on Organization, Development, Education and Research (PODER)
- Project of Economic, Social and Cultural Rights (ProDESC)
- Red en Defensa de los Derechos Digitales (R3D)
- Servicios y Asesoría para la Paz (Serapaz)
- Accompanied by: Peace Brigades International – Mexico
- Observer: Interamerican Association for Environmental Defense (AIDA)
The Civil Society Focal Group on Business and Human Rights discuss the key elements that should form part of an EU law from their point of view, including involvement of civil society organisations and communities when developing the legislative initiative, and reflecting their concerns in the legal text itself.
Last April, EU Justice Commissioner Didier Reynders announced an EU legislative initiative on mandatory corporate human rights and environmental due diligence (the initiative). This announcement led us to reflect once again on the central elements that cannot be ignored, both in terms of the process of drafting the initiative as well as its content. The initiative should:
1. Integrate international human rights standards
The COVID-19 pandemic has highlighted the laxity of companies, particularly transnational ones, in complying with national and international standards on human rights and the environment. This includes those related to the adoption of actions to prevent possible negative impacts of their activities on the environment and climate, as well as on the human rights of individuals, communities and indigenous peoples. It is therefore essential that the EU seeks to integrate obligations for EU governments and companies, effective sanctions for parent and subsidiary companies, as well as access to justice and remedy for workers, trade unions and affected communities.
2. Include extraterritorial obligations and mechanisms for justice, mitigation and reparation mechanisms for communities outside the EU
Extraterritorial obligations of companies and their link to due diligence, remedy for abuses and access to justice are a key element that should be included to emphasise that parent companies, and not just their subsidiaries and the small and medium enterprises in the Global South that tend to be their suppliers, carry responsibility for human rights and the environment, including climate change. There is also a need to develop and implement a justice mechanism that is integrated into the structures of European countries so that it can be used from outside and facilitate access to justice for communities in other jurisdictions.
3. Include the voices of civil society and affected communities and a gender and intersectional perspective
It is essential to include civil society organisations and communities from all regions of the world, and to ensure their participation and effective inclusion both in the process of developing the initiative and in the text itself.
In Latin America, there are expert civil society organisations that promote human rights and environmental due diligence mechanisms, as well as effective, comprehensive, gender-sensitive and intersectional reparations. Some accompany communities on their search for justice for the negative impacts of business operations on their human rights, including those of European companies. Therefore, based on their valuable experiences, they could provide input into the design and implementation of such mechanisms.
One such case is that of the indigenous Zapotec community of Unión Hidalgo in Oaxaca, who with the support and direction of the Mexican Project of Economic, Social and Cultural Rights (ProDESC) and the European Center for Constitutional and Human Rights (ECCHR), used the mechanism established in the French law on the Duty of Vigilance for the first time in the Americas, urging the French company Electricité de France (EDF) to comply with their legal obligation to establish measures to prevent and mitigate the risk of human rights abuse with regards to the Gunaa Sicarú wind park. Although the case is still ongoing, it shows the importance of these judicial mechanisms that are in reach for affected communities, particularly when there are no legal remedies for corporate accountability in their home country, and risks of corporate capture and impunity are present
4. Link its development to other processes related to corporate due diligence and regulatory standards on business and human rights
The initiative must be compatible with and complementary to another important process on the subject: the International Legally Binding Instrument on Transnational Corporations and other companies with respect to Human Rights (“Binding Treaty”), as well as other binding instruments on the protection of human rights and the environment, like the “Escazú Agreement” European regulation should not be less demanding or less progressive than the draft of a Binding Treaty, the elaboration of which has provided for the participation of civil society from all regions, and which includes a dedicated gender perspective. It could also complement and incorporate even stricter standards appropriate to the position of EU countries and companies in global economic structures.
The civil society organisations that constitute the Civil Society Focal Group on Business and Human Rights in Mexico have promoted various dialogue and follow-up actions for the development of mandatory human rights and environmental due diligence legislation at the global level, with the aim of having effective mechanisms that guarantee the integrity of human rights in relation to business activity, beyond the EU. European legislation could have a positive impact on other jurisdictions that adopt and implement similar mechanisms. We consider it essential that the meaningful participation of civil society and affected communities is considered. We offer our availability for a productive dialogue that can help generate real change from the EU.
Perspectives from Business, Public Sector, Academia and Civil Society
This post is an excerpt from our collation of perspectives on Mandatory Due Diligence ahead of the German EU Council presidency. Click through below to read all of the contributions from around the globe.