I. Introduction
Human rights due diligence (HRDD) has become the buzzword of much of the advocacy and work today around business and human rights. This is reflected not only in emerging business practice but also in a growing number of civil society campaigns and legislative initiatives. A number of recent laws and legislative proposals, mostly in Europe, establish or seek to entrench in law a requirement for companies to carry out HRDD. In some cases, they also establish or seek to establish some form of legal liability for failure to comply with the HRDD obligation or, in other cases, for the harm caused to third parties as a result of such failure.Footnote 1 In April 2020, the European Commission’s Commissioner for Justice, Didier Reynders, announced a European Union (EU)-wide legislative initiative to require companies across the EU to carry out HRDD.Footnote 2 While civil society campaigns have been the main engine behind much of the momentum for mandatory HRDD, businesses and investors are increasingly also in favour of this call.Footnote 3
Due diligence as a business concept and practice has existed for years and well before it began to be debated in the context of business and human rights. In the business context, due diligence is a process of investigation of facts and data to identify and manage commercial risks, including the potential for legal liability, ahead of a given commercial transaction or activity.Footnote 4 It is in the interest of a business enterprise to carry out this process thoroughly to identify and prevent commercial and financial risks to the business itself.
The concept of human rights due diligence was developed in the course of the work of former Special Representative of the Secretary General (SRSG) on business and human rights, John Ruggie, from 2005 to 2011.Footnote 5 Ruggie’s mandate culminated with the endorsement of the United Nations Guiding Principles on Business and Human Rights (UNGPs) by the Human Rights Council (HRC) in June 2011.Footnote 6 HRDD is a core element of the UNGPs’ second pillar that focuses on the business responsibility to respect human rights. Despite initial scepticism, most stakeholders sooner or later began accepting it and incorporating it into their work. However, the relatively broad consensus that emerged around HRDD in the run-up to and since the adoption of the UNGPs is superficial. It does not take much digging to detect significant divergences among scholars and stakeholders in their understanding of the concept and, importantly, its relationship, if any, with legal liability.
The ten-year anniversary of the approval of the UNGPs is a good occasion to take stock of progress and challenges. Section II of this article discusses the evolution of HRDD as a concept, the current trend towards legalization, some of the controversies around the nature and objectives of HRDD, and the risks that certain conceptions and potential uses of HRDD might pose to rights-holders. Section III addresses some of the inherent limitations of HRDD as a tool for ensuring respect for human rights. Finally, section IV summarizes where we are at and what might be expected going forward regarding HRDD, including risks to watch out for. It will also briefly outline some of the elements, including safeguards, to avoid or minimize those risks.
As efforts continue to entrench HRDD in law, we wish to encourage greater attention and discussion towards these issues. The purpose is not to stall legislative efforts, but to alert to certain misconceptions of HRDD that may influence the interpretation and implementation of new laws and undermine their effectiveness. Awareness of potential pitfalls and risks can assist stakeholders in securing HRDD laws that are strong and effective and can genuinely contribute to the threefold objective of enhancing prevention, accountability and remedy for business-related human rights abuses.
II. Trends, Evolution, Controversies and Risks
A. Trend Towards Legally Mandated HRDD
Over the last decade, there has been an impressive uptake of the UNGPs and of HRDD in a large number of declarations, policies and statements by both states and companies. This uptake, periodically highlighted in reports by the UN Working Group on Business and Human Rights (WGBHR) and other groups,Footnote 7 has not been matched with a similar level of practical implementation. A number of studies have recently shown the deficits in this regard.Footnote 8 For instance, a survey conducted by the German government showed that far less than 50 per cent of surveyed companies were able to document their compliance with HRDD standards.Footnote 9 In response to this failure, a multiplicity of legislative initiatives have sprung up, mostly in Europe, reflecting a clear trend towards legally required HRDD and corporate legal accountability. This trend is also reflected in the provisions of a proposed international treaty on business and human rights currently under discussion at the UN Human Rights Council.Footnote 10
Right from the start of the SRSG’s mandate in 2005, a large proportion of civil society organizations called on him to adopt and recommend a mandatory approach to ensure corporate respect for human rights as well as legal accountability for corporate abuses.Footnote 11 However, the UNGPs did not state that HRDD should be mandatory, nor did they include a recommendation to states to require HRDD. One of the fundamental reasons for the endorsement of the UNGPs by the HRC was precisely the fact that they were regarded as not legally obligatory. An effect of this was to invigorate and legitimize a narrative that HRDD need not and should not be legally mandated but just encouraged through a mix of voluntary initiatives, incentives and guidance. The calls for mandatory HRDD and legal liability intensified over the years since the adoption of the UNGPs and began to bear fruit more recently with the emergence of legal initiatives and the adoption of some laws. Despite this clear trend, there remain important differences in approach in relation to the type of mandatory measures. While some seek to tie HRDD obligations to civil liability regimes, others do not, focusing on articulating HRDD obligations accompanied by more or less rigorous public enforcement mechanisms.Footnote 12 Depending on the model adopted, some laws can be real game-changers, others may spur some modest improvements in current corporate practices. At the same time, some measures can represent real risks to human rights protection, as discussed below.
HRDD laws that (i) prescribe substantive and demonstrable preventative measures along entire value chains as well as full transparency and effective participation of potentially affected rights-holders in both their design and implementation, (ii) carry the prospect of hefty penalties for non-compliance, and (iii) are systematically and robustly overseen and enforced by independent and well-resourced competent authorities may have strong impact. Such impact may be further increased by clearer and stronger laws on civil liability leading to a duty to fully repair harm caused to individuals and communities.
There is currently only one law in place adopting both due diligence obligations and some form of civil liability linked to non-compliance with those obligations. The French Duty of Vigilance Law, enacted in 2017, imposes a duty of vigilance on certain large companies to prevent serious human rights abuses and environmental damage resulting from their own activities, the activities of companies they control and those of established business relations. Crucially, it establishes the civil liability of companies covered by the Law for failing to comply with their vigilance obligations and gives victims the right to sue before French courts for damages that the execution of their due diligence obligations could have prevented.Footnote 13
A different approach is followed in the EU Conflict Minerals RegulationFootnote 14 and the Dutch Child Labour Due Diligence Act.Footnote 15 These laws contemplate public enforcement measures for non-compliance with due diligence requirements in the form of administrative sanctions, and, in the case of the Dutch law, criminal sanctions in certain circumstances. However, none of them includes civil liability for failure to carry out proper due diligence as in the French law. While administrative and criminal sanctions are important legal accountability measures, they do not provide direct reparation to victims.
However, even if civil liability is in principle accepted, the focus of the debate shifts to discussions over the grounds for, as well as the nature and scope of, liability. It is easy to see the push and pull of the various approaches within legislative debates. The Swiss campaign for mandatory HRDD legislation illustrates this point well.
In 2015, a large coalition of Swiss civil society organizations launched a popular initiative for the introduction of text into the national Constitution to require Swiss companies to carry out HRDD and to make them liable for harm caused by companies they control (Responsible Business Initiative).Footnote 16 Under this proposal, a controlled company can be a subsidiary or another entity, such as a supplier or sub-contractor, under de facto control. To avoid a referendum on the initiative, the National Council, one of the chambers of the Swiss parliament, presented a counterproposal limiting liability to certain larger Swiss parent companies and additionally requiring that control be legal (not de facto) and effectively exercised.Footnote 17
The Council of States, the other chamber of the Swiss parliament, put forward an even narrower counterproposal focused on reporting on HRDD practices and requiring due diligence only in relation to conflict minerals and child labour. Liability was eliminated.Footnote 18 In June 2020, the two parliamentary chambers agreed to support the latter proposal, which campaigners deemed unacceptable. As they put it at the time, ‘the multinational corporations’ lobbyists have won the day in parliament’.Footnote 19 The promoters of the Responsible Business Initiative decided not to withdraw their text and to march ahead with the popular referendum on their original proposal. The referendum, carried out on 29 November 2020, resulted in a favourable popular vote (50.7 per cent of the voting population) but a rejection by the majority of Switzerland’s cantons. As a majority of both the popular and cantonal votes is needed for an initiative to pass, this means that the referendum was lost and the much weaker parliamentary counterproposal automatically becomes law.Footnote 20 The end result of a decade-long battle is a reporting law, with actual HRDD duties only in relation to conflict minerals and child labour.
A similar parliamentary wrestling preceded the enactment of the French Duty of Vigilance Law which, despite its many positive elements, is still a watered-down version of initial texts in relation to liability. As with the Swiss legislative proposals, the weaker text is attributed to intense corporate lobbying.Footnote 21
B. Evolution and Controversies Around HRDD
Since the adoption of the UNGPs, the understanding and practice of HRDD have evolved in substantially differing ways. As expressed above, HRDD is itself an evolution and transformation of the original concept of financial and legal due diligence as a business practice. The UNGPs built on this concept but added elements that sought to fundamentally transform its nature and purpose. In the UNGPs, due diligence is aimed at identifying and preventing risks to rights-holders, not merely to the business, it is also ongoing rather than a one-off step, and it requires that the views of the potentially affected people are factored into the process.Footnote 22 John Ruggie defined HRDD as ‘a comprehensive, proactive attempt to uncover human rights risks, actual and potential, over the entire life cycle of a project or business activity, with the aim of avoiding and mitigating those risks.’Footnote 23 As such, it is an instrument for prevention which is independent from and has no necessary link to the law, let alone legal liability (except, some will argue, as a potential shield from liability).
For many corporate actors and their advisers, HRDD is essentially a risk management tool.Footnote 24 Even if conceding that this might be legally prescribed, as a preventative tool or, as some argue, a tool to guide companies in their journey for continuous learning and improvement, it should carry no major legal liability repercussions (except, perhaps, in relation to gross misconduct).Footnote 25 Over the years, a different understanding of HRDD has emerged for an important part of the legal community that associates HRDD with legal liability, where the lack of compliance with HRDD as a standard of conduct for businesses to discharge their responsibility to respect human rights would trigger civil liability.Footnote 26
Bonnitcha and McCorquodale argue that the UNGPs ‘invoke both understandings of the term at different points’ (as a management process and as a standard of care), creating uncertainty about the extent of business responsibility to respect human rights or the consequences for breaches.Footnote 27 They explain that the UNGPs often describe due diligence as a ‘process’, a notion that sits more comfortably with traditional concepts of due diligence as a business risk-management tool, but other parts of the UNGPs as well as some of the SRSG’s reports support the view of HRDD as a standard of care.Footnote 28 According to Bonnitcha and McCorquodale, the understanding of HRDD as a standard of care allows a more internally ‘coherent’ interpretation of the UNGPs – one whereby a company’s breach of its responsibility to respect human rights by its own conduct is assessed against a no-fault liability standard (where HRDD has limited or no role), while its responsibility for infringements by business relationships is assessed against its HRDD practices (i.e., HRDD as a standard of care).Footnote 29
The understanding of HRDD as a standard of care sits well with calls by corporate accountability advocates for the recognition of the legal responsibility of parent or lead companies for the harm caused by their subsidiaries, suppliers and other companies in their value chains. This advocacy, originally articulated around the common law concept of ‘duty of care’,Footnote 30 may have been reformulated as mandatory HRDD with the advent of the UNGPs. However, due diligence is still seen not as a replacement of the corporate duty of care, but rather as a definition of the conduct or behaviour expected of companies to meet that duty. A 2020 study on human rights due diligence commissioned by the European Commission’s Directorate-General for Justice appears to endorse this view by arguing that HRDD as a ‘legal standard of care’ ties in with Ruggie’s notion of due diligence as a ‘do no harm’ requirement.Footnote 31
Another approach to HRDD and liability proposes that the obligation to carry out HRDD and the obligation to provide reparation for harm are kept separate. Under this view, a requirement to practise HRDD should be enforced through monitoring mechanisms and sanctions. However, HRDD should not be understood as exhausting the universe of reasonable measures a company is expected to take in an effort to prevent harm. For this reason, compliance with HRDD obligations would not equate to compliance with a company’s duty of care. In examining the extent of corporate liability for human rights abuses, courts would look at other reasonable measures, beyond HRDD, that a company could have taken to prevent the harm.Footnote 32
The different views about HRDD and its relation to liability described above have implications for its potential use as a defence against charges of liability. The commentary to Principle 17 of the UNGPs may appear to support the idea that HRDD could be used as an exonerating defence when it indicates that ‘Conducting appropriate human rights due diligence should help business enterprises address the risk of legal claims against them by showing that they took every reasonable step to avoid involvement with an alleged human rights abuse.’ However, the commentary subsequently clarifies that ‘… business enterprises conducting such due diligence should not assume that, by itself, this will automatically and fully absolve them from liability for causing or contributing to human rights abuses.’ Expectedly, most companies and industry associations argue that HRDD should be able to act as a defence if liability is included in legislative measures,Footnote 33 whereas most corporate accountability advocates tend to either reject this idea or severely caveat or qualify it.Footnote 34
C. Risks of Certain Approaches
The corporate views of HRDD described above can percolate legislative processes and end up re-defining their objectives. Corporate lobby can drive initially strong legal proposals to what might amount in practice to only reporting requirements, if legislation is passed at all. Despite recently falling into disrepute, self-regulation and voluntary initiatives are still seen by many as the way to go and these views can have a restraining effect on legislative processes.Footnote 35 While many companies and some business associations are moving away from this position and are now publicly supporting calls for mandatory HRDD, very few also call for civil liability.Footnote 36 In light of the strong corporate lobby that is to be expected in the course of legislative processes, the risks faced by legislative initiatives are considerable, not least because they may result in laws that, under the guise of corporate accountability, end up prescribing no or very limited actual accountability measures.
Certain legal models may place an excessive focus on process rather than outcomes.Footnote 37 This would be the case of a law that simply placed on companies a duty to have a due diligence programme in place or to follow certain procedural requirements (e.g., publish an action plan or set up a grievance mechanism) without regard for their effectiveness in reaching outcomes. An excessive focus on HRDD as a process risks detracting from its central objective: to enable businesses to respect human rights. As noted by Landau and Mares, the centre of gravity can move from recognizing the business responsibility to respect human rights as the standard to the use of HRDD as the standard itself.Footnote 38 This would also be the result of a HRDD regime that foresaw no consequence for non-compliance or for causing harm. As we discussed above, some models of HRDD do not contemplate consequences for non-compliance (their objective being focused on best efforts for prevention and continuous improvement). However, without consequences for not achieving the intended results, the means can become an end in itself. A pernicious result of such an approach would be that companies are seen to be in compliance with the law while not necessarily respecting human rights.
The above can also be the result of biased or misguided interpretation and deficient monitoring and enforcement by public authorities, all of which can lead to cosmetic compliance with due diligence requirements, i.e., compliance that is superficial and declaratory and lacking in actual substance.Footnote 39 Implementation might be weak, for example, in relation to the more practical ‘take action’ and ‘track responses’ elements envisaged under the UNGPs.Footnote 40
Landau outlines some of the reasons why such cosmetic or tick-box compliance with HRDD requirements may happen.Footnote 41 One reason is the tendency towards ambiguity in the language used in the policies or regulations, which leaves businesses with a wide discretion as to ways of interpreting and complying with them. A second reason is the proliferation of guidance that sends a plurality of messages to businesses about the best ways of complying with due diligence requirements, often disparate or contradictory, leaving businesses again with significant discretion to choose which guidance to follow. Often, businesses choose guidance elaborated by their own industry associations or which they helped draft. A third reason has to do with deficits of transparency in company practices. Limited reporting requirements or a lack of accountability for failure to properly report is also a common feature of current reporting regimes which exacerbates the cursory and perfunctory practice of HRDD.Footnote 42 Ambiguous language, ample corporate discretion, deference to corporate-defined best practices, and limited or weak reporting provisions can shape not only the contents and practice of HRDD but, importantly, how effective compliance is assessed.
In other words, cosmetic compliance with HRDD at the internal company level replicates the high-level political uptake of the UNGPs with very little substantial action and verification of actual results.
A further source of risk in relation to legally mandated HRDD is its possible legitimation as a defence against civil liability claims. As seen above, even when supportive of legally required HRDD, many oppose or remain silent or vague as to the possibility of non-compliance carrying legal liability consequences. Civil or criminal liability provisions can be undermined by limiting the grounds for such liability or allowing HRDD to act as an exonerating defence. Surely, under current civil procedure in most jurisdictions, corporations that are sued for damages will defend themselves vigorously, including by showing evidence of compliance with existing norms and due care in the conduct of their operations. Any HRDD process, whether robust or weak, that is implemented by the company will surely be put forward as evidence of diligent conduct in this context. An explicit legal recognition that a defendant company may use its compliance processes, including HRDD, as part of its defence, will add, prima facie, very little to their defence arsenal, because they can already do so. However, an express recognition that a company’s HRDD process may be sufficient, in itself, as a defence or, even worse, that it may be capable of stopping legal proceedings at the pre-trial stage, would be highly problematic. So would be an interpretation in practice that goes in the same direction (say, by judges hearing civil claims).Footnote 43
The risks to rights-holders from HRDD laws that carry no major legal consequences for non-compliance, or that entrench formalistic, compliance-oriented HRDD regimes are significant. Firstly, the objective of prevention would not be achieved with a due diligence process that is primarily concerned with safeguarding the company from risks, that is superficial or adopts a tick-box approach or that carries no major consequence for non-compliance either in theory or in practice. Secondly, when human rights abuses do occur, those affected would either not have a cause of action to seek remedy for the harm they have suffered (leaving the status quo virtually unchanged, despite there now being a due diligence law), or companies would be able to rebut allegations against them by simply showing they have a HRDD system in place, or demonstrating superficial compliance with prescribed standards that bear no relevance to actual steps taken on the ground and their effectiveness at preventing the alleged harm.Footnote 44
Some of the legal proposals currently or recently on the table contemplate a due diligence defence. The rejected Swiss Responsible Business Initiative included the possibility for corporate defendants to rebut liability by showing that they have carried out adequate due diligence. Some scholars and advocates accept, or even actively encourage, the use of due diligence as a defence as a way to encourage robust due diligence practices.Footnote 45 However, carefully defining the type and nature of HRDD that can act as a defence as well as the circumstances in which it can be utilized in this manner become paramount.
If superficial ‘tick-box’ forms of due diligence are allowed to operate as a defence, victims of business-related human rights abuse could end up worse off than they were prior to the law. This is because they presently can make use of traditional tort-based causes of action to seek reparations for some types of harm (e.g., harm to health, life and property) that do not contemplate a due diligence defence as such (especially when the harm is alleged to have been caused or contributed to by a company itself, through its own activities). The same is true of many specialized regimes such as health and safety, anti-discrimination, labour, consumer protection and environmental law which require alleged wrongdoers to show substantive steps effectively taken to prevent harm to avoid incurring liability,Footnote 46 if they admit a defence at all (many of these regimes are based on absolute or ‘no-fault’ liability which do not permit a defence).
Just having a due diligence process in place, or having completed a series of prescribed actions, do not show that the standard of care has been met. A law that allows or evolves to be interpreted, in practice, as permitting formal, procedural due diligence steps as a defence, would significantly lower the chances for victims to access remedy. Put from the business perspective, companies would acquire a tool to defend themselves against liability charges that they previously did not have.
III. Limits of HRDD
There might be circumstances in which HRDD – either as a risk management tool or as a legally mandated standard of care – may not be useful, practicable or likely to achieve its purposes. These circumstances may be associated with dictatorial regimes or armed conflict situations in which corporate activities have a heightened risk of contributing to the commission of international crimes or serious human rights violations.
In 2013, Michalowski noted the potential value of HRDD to prevent complicity with gross human rights violations or international crimes provided that there was further definition and precision around the concept of complicity. For her, the contours of extra-legal complicity was in need of clearer definition to provide better guidance to business as to which risks they needed to avoid and in which circumstances the mere presence or continuation of a business relationship could make them complicit with violations.Footnote 47
In this regard, there is now a wealth of evidence and analysis of the ways in which businesses have contributed to, and benefited from, the emergence or maintenance of repressive or dictatorial regimes, in particular in Latin America, where a fundamental reason for the establishment of those regimes was precisely the instauration of an economic model based on the systemic curtailment of workers’ rights and elimination of judicial protection of those rights.Footnote 48 These forms of participation in economic and social policies which systematically and pro-actively seek to eliminate human rights protections have also been framed as instances of complicity.Footnote 49 Similar situations may arise in the context of colonization or annexation of territory, both of which might be considered illegal under international law. In many of these situations, no amount of HRDD will ever permit a company to do business in a way that does not contribute, more or less directly, to human rights violations.Footnote 50
Other situations in which HRDD may not be an appropriate tool to guarantee respect for human rights arise when a product or activity is inherently harmful and there is no way of using or engaging in it without causing harm. This arguably applies to business activities associated with the production and trade in tobacco, fossil fuels and certain arms and weapons.
Finally, there might be circumstances beyond those outlined above that may lead to a conclusion that the only way for businesses to exercise their responsibilities under the UNGPs is by refraining from entering into an activity or relationship altogether. Those situations may arise where independent and reliable identification, avoidance, mitigation or prevention of risks of human rights violations cannot be done. Labour conditions for the Uyghurs in the Xinjiang region of China may be one of those circumstances. For a large coalition of investors, brands, civil society organizations and trade unions, refraining or withdrawing from supply chain relationships with companies in that region is the only option for a company to avoid contributing to serious human rights violations. They conclude: ‘operating in the Uyghur Region in accordance with the UN Guiding Principles on Business and Human Rights has become a practical impossibility’.Footnote 51
Company disengagement from an operation or relationship might also be the only option to ensure the company respects human rights in circumstances where HRDD fails or is unlikely to prevent and/or mitigate harm. Principle 19 of the UNGPs provides some guidance on this option but in a tentative way, as an option for the company to consider, taking into ‘account credible assessments of potential adverse human rights impacts of doing so.’
In its 2020 report to the General Assembly, the WGBHR notes that HRDD is ‘built around a concept of proportionality: the higher the risk, the more complex the processes.’Footnote 52 It adds that while the UNGPs evoke situations of potential disengagement, they ‘do not deal directly with this situation’.Footnote 53 As Principle 19 recommends businesses take into account the potential impact on stakeholders of a decision to end a relationship, the WGBHR puts forward some elements for an orderly withdrawal. Other than that, there is no further elaboration on the circumstances under which a business enterprise should refrain from an activity or relationship from the outset or cease or withdraw from such a business activity or relationship if already engaged in it.
Going forward, it would help clarifying the circumstances in which HRDD is impracticable or ineffective and unlikely to prevent or mitigate risks of human rights harms. This is necessary to avoid the risk of legitimizing certain activities, relationships or operations on the basis of being HRDD compliant, when, by definition, they cannot.
IV. The Next Decade of UNGPs’ Implementation
The above account points to three key considerations concerning the way ahead regarding HRDD. Firstly, there now is a clear trend towards mandating HRDD in law which is only expected to increase as the world seeks to ‘build back better’ from the COVID-19 health crisis and to fight climate change. Secondly, the battlefield has now shifted from debates around mandatory versus voluntary HRDD to discussions about the nature and scope of legal requirements and their relationship with legal liability. Thirdly, there lays a treacherous path ahead. Legalization is welcome, but laws that entrench certain versions of due diligence with no or poor liability regimes might do more harm than good to corporate accountability efforts.
In our view, HRDD laws, however named, should seek to meet the three inter-dependent goals of prevention, accountability and remedy. Without accountability for non-compliance, HRDD will not achieve the goal of prevention in practice. Without complementary civil liability provisions, those who suffer harm will have no means of securing measures that can repair or ‘make good’ the harm and losses they have suffered. Accountability should be bolstered through a combination of strong transparency, reporting and disclosure duties as well as independent and well-resourced monitoring and enforcement bodies. These measures should help minimize the risk of HRDD becoming box-ticking exercises. So would strong complementary legal liability regimes.
The real prospect of civil and/or criminal liability for corporate misconduct would enhance effective implementation of HRDD. This would require strengthening access to justice by enabling claimants to have greater access to information in the hands of corporate defendants, facilitating legal representation and mechanisms for collective complaints. To avoid hollow defences, efforts to avoid harm should be examined objectively against key elements of a genuinely preventative approach. These comprise, among others, the extent to which the company implements a participatory model of HRDD (where at least key stakeholders participate in the full HRDD cycle), discloses all relevant information in a timely manner and engages in meaningful consultation with those potentially affected or seeks their informed consent, as the case may be. Crucially, they include the extent to which the company chooses and implements measures that are in practice capable of preventing the specific harm under examination.
Finally, to avoid the potential unintended consequences described above, HRDD laws should clarify their scope and limits in at least two critical regards. Firstly, they should be extremely careful not to over-ride or undermine existing legal regimes which might provide additional or stronger grounds for liability. In this sense, possible HRDD-based liability regimes, such as the one the French law appears to contemplate, should be carefully considered and designed so that they strengthen and improve existing liability regimes. Secondly, in light of the inherent limitations of HRDD discussed in section III above, HRDD laws themselves, or their interpretive guidance, should also clarify the circumstances in which HRDD might not be the appropriate tool to ensure corporate respect for human rights.
The first ten years of the UNGPs’ implementation overwhelmingly focused on voluntary uptake by companies supplemented by dissemination and capacity-building, elaboration of guidance and market incentives. Today, the need for mandatory measures is firmly recognized by all stakeholders. This is certainly the case in Europe and in a few other parts of the world. While slow in coming, this represents progress.
The next decade of the UNGPs’ implementation should not be spent debating whether consequences for non-compliance of legal duties and civil liability provisions to enhance access to remedy are in fact needed in the way policy-makers did regarding mandatory measures over the first ten years of the UNGPs’ life. Equally, or perhaps even more importantly, all those more or less directly involved in processes to bring about new laws must watch out for and ensure the following two critical risks are avoided. Firstly, the risk of creating the appearance of progress with hollow HRDD laws that, while doing little to change the status quo in practice, will effectively bring legislative efforts to an end, at least for the foreseeable future. Secondly, the risk of inadvertently providing companies with a tool that they hitherto did not have to show respect for human rights and rebut charges of liability with little bearing on effective respect for human rights on the ground.
