By Heather Cohen, Legal & Policy Associate, International Corporate Accountability Roundtable (ICAR)
Due diligence has become a prominent tool for corporations to identify, prevent, mitigate, and account for human rights violations, while likewise permitting courts and regulatory bodies to assess the extent to which this has been done. Human rights due diligence has been endorsed by the United Nations Human Rights Council and is increasingly looked to by member States as a means of implementing the corporate responsibility to respect human rights.
In recent years, frustrated with voluntary initiatives, civil society groups have begun pushing for mandatory human rights due diligence. Although this may be a relatively new trend, mandatory due diligence is not a new concept. Many countries already have some form of regulatory due diligence in areas of law that are either analogous or directly relevant to human rights, such as labor rights, environmental protection, consumer protection, and anti-corruption.
The widespread application of due diligence regimes was highlighted in a Report from the International Corporate Accountability Roundtable (ICAR), European Coalition for Corporate Justice (ECCJ), and Canadian Network on Corporate Accountability (CNCA) published in December 2012, entitled “Human Rights Due Diligence: the Role of States.” The Report analyzes existing due diligence provisions with the goal of clarifying and building consensus around the concept of human rights due diligence in domestic legislation and policies.
Written and researched by international experts on business and human rights, including Professor Olivier De Schutter, Professor Anita Ramasastry, Mark B. Taylor, and Robert C. Thompson, the Report examines the extent to which States have already made use of due diligence legislation to ensure that businesses respect established standards. The experts reviewed more than 100 examples of due diligence regimes from a wide variety of regulatory sectors across more than 20 States. Their findings demonstrate that human rights due diligence is not a new concept as legal systems around the world have made use of due diligence in both the civil and criminal contexts.
The Report further demonstrates that where States properly implement these regulations, they can be effective in preventing or mitigating harm. However, States have not taken advantage of these legal tools, nor have they effectively utilized them to ensure that businesses respect human rights in general. To increase corporate respect for human rights, the Report provides a range of regulatory options that policymakers can use as the next steps in strengthening human rights due diligence regulations. An update to the Report was published on November 22, 2013 and highlighted areas of progress, while flagging gaps that continued to exist.
It is now almost four years since the publication of the update to the Report and we have developed a website that tracks mandatory, human rights-specific, due diligence initiatives. These legislative developments are a sign of how far we have come, and suggest that "mandatory human rights due diligence on supply chains could soon become the norm for multinational companies." In the meantime, the broader due diligence regimes identified in the Report may serve as a foundation on which to grow these more specific measures.