"Mandatory human rights due diligence laws in Europe: A mirage for rightsholders?", 22. February 2023

[...] It is therefore timely to interrogate the potential and limitations of mandatory HRDD laws in preventing business-related human rights abuses. As part of this interrogation, this article develops a two-layered critique of mandatory HRDD laws. As part of the first layer, it problematizes the very concept of HRDD as articulated by the UNGPs. I will argue that due to various conceptual, operational and structural limitations, HRDD alone – even if practiced by corporations – will not bring the desired changes for rightsholders. The second layer of critique concerns the content of mandatory HRDD laws that have been enacted so far: leaving aside inherent limitations of HRDD, these laws are merely half-hearted attempts to tame business-related human rights abuses and hold the relevant corporate actors accountable. If not drafted properly, mandatory HRDD laws may in fact prove counter-productive by either encouraging ‘cosmetic compliance’ on the part of corporations or institutionalizing HRDD as a defence to legal liability. They may also help in covering up existing imbalances of power between states, corporations and communities, instead of addressing them.

Therefore, regulators and policy makers should carefully consider limitations of HRDD in practice and look beyond making HRDD mandatory to make any real difference to the situation of rightsholders on the ground or bring a fundamental shift in how businesses are currently run. They should do so despite calls to preserve, what I would call, the ‘sanctity’ or ‘conceptual purity’ of HRRD under the UNGPs. (Mandatory) HRDD should not end up becoming the end in itself. Rather, HRDD should be treated merely one of the many means to ensure that businesses respect internationally recognized human rights, and states should use all available regulatory options as part of their duty under Pillar I of the UNGPs instead of focusing solely on enacting mandatory HRDD laws. [...]

In a span of just over 11 years, HRDD has become a common currency in the BHR field used by all players as a tool for business enterprises to identify, prevent, mitigate and account for adverse human rights impacts. Although not a prominent component of Pillar I, HRDD has also become a key tool employed by states to discharge their duty to protect human rights. This in itself is a significant achievement for a deeply polarized field historically.

However, as this article has tried to show, we should not accept HRDD as a panacea to either prevent human rights abuses or hold businesses accountable. In fact, because of its popularity and impressive uptake, HRDD – as part of the Pillar II of the UNGPs or of a mandatory regime at the national, regional or international level – has the potential to create a false impression of change, without making any substantial positive impact on the situation of rightsholders on the ground. I have elaborated various conceptual, operational and structural limitations of the concept of HRDD under the UNGPs. Moreover, as a critical review of five mandatory HRDD laws shows, many of these limitations will not be overcome by states simply making HRDD mandatory in line with the UNGPs.

Based on the existing practice of HRDD (including mandatory HRDD laws), one can draw at least four lessons for regulators and policy makers. First, social expectations or market forces alone will not be adequate orchestrators for businesses to take seriously their responsibility to respect human rights. Although it may sound paradoxical, the role of states as regulator, monitor, enforcer, facilitator and co-ordinator will be critical to support the operationalization of the independent responsibility of businesses to respect human rights under Pillar II of the UNGPs.

Second, a key distinction should be made between the outcome (the business responsibility to respect human rights) and the process (HRDD). The current mandatory HRDD laws are only seeking to make the latter obligatory. While this is a step in the right direction, it will not be sufficient. States and other actors should pay greater attention to achieving outcomes and this should also be reflected in their mandatory regulatory regimes.

Third, the 3.0 version of laws under Pillar I of the UNGPs, including mandatory HRDD laws, should set much more ambitious goals, some of which are articulated in the six preconditions discussed above. They should, for example, focus on addressing imbalances of power, information and resources between enterprises and rightsholders. Moreover, such laws should combine a variety of carrots and sticks. By providing for incentives for businesses taking their human rights responsibilities seriously, states should both create and facilitate proactively market rewards for responsible business conduct. In addition, there should be effective provisions for access to remedy and corporate accountability.

Fourth, the entire state-based regulatory universe should not be limited to mandatory HRDD laws. Although prevention under Pillars I and II may be ‘inextricably linked’, unlike businesses’ prevention responsibility under Pillar II, states’ prevention duty under Pillar I is not mostly limited to HRDD. Rather, states should employ a range of additional regulatory tools such as obliging the adoption of a precautionary approach, establishing a strict liability regime, imposing import-export bans, drawing red lines in certain situations or addressing systemic problems with the free market economy. In other words, mandatory HRDD laws should be part of a wider regulatory menu instead of being the only item on the menu.