Mandatory human rights due diligence (mHRDD)

Background

Since the unanimous endorsement of the UN Guiding Principles on Business and Human Rights (UNGPs) by the UN Human Rights Council in 2011, a new era of socially responsible and sustainable business has taken shape and continues to build momentum. Under the UNGPs, all business enterprises have a responsibility to respect human rights, and the process of continuously conducting human rights due diligence (HRDD) is a core requirement for businesses in fulfilling that responsibility.

HRDD is a key tool in the global efforts to build forward better in the wake of the COVID-19 pandemic. HRDD enables companies to focus their attention on the most severe human rights risks and identify actual or potential risks to people as part of any response to the pandemic.

The UNGPs also clarify that States’ international human rights law obligations include the duty to protect against human rights abuse by business. The UNGPs set out the legal and policy implications for how to operationalize this duty through a “smart mix” of measures that include legally binding measures, particularly where voluntary measures continue to leave significant gaps in human rights protections.

A wave of responsible business legal requirements is impacting markets across the world, with mandatory human rights due diligence (mHRDD) regimes already in place or in development across a growing number of jurisdictions, particularly in the EU context. Increasingly, businesses and investors, alongside civil society organizations, are calling for effective mHRDD legislation.

Mandatory measures: a key issue for the road ahead

In light of the Working Group on Business and Human Rights’ prior work related to mHRDD, the Working Group recognizes that legislative initiatives like the one proposed at the EU level are critical for speeding and scaling up business respect for human rights.

Particularly, in its report to the 2018 UN General Assembly, the Working Group highlights key features of HRDD and how key stakeholders — not least States through reinforcing legal drivers — can contribute to the scaling-up of effective HRDD.

Building out regulatory responses to business’ actual and potential impacts on human rights, is a key issue for the Working Group's ongoing efforts to develop a roadmap to advance implementation of the UNGPs in the next decade (UNGPs10+).

Working Group recommendations for legal developments in this area include the need for mandatory measures to:

• Be based on the key expectations set out in the UNGPs.
• Be based on meaningful and inclusive stakeholder consultations.
• Cover all internationally recognized human rights and all types of adverse human rights impacts.
• Apply across value chains, not just within supply chains.
• Apply to the government as an economic actor.
• Facilitate both vertical and horizontal policy coherence.
• Go beyond reporting regimes and require meaningful processes and outcomes.
• require businesses to take measures that facilitate access to effective justice and remedy.
• Set out clear compliance monitoring and enforcement structures and procedures that facilitate access to effective justice and remedy.
• "Cover all companies and other forms of business enterprises incorporated or domiciled in the relevant jurisdiction and all foreign business enterprises which sell goods or services in the relevant jurisdiction, and apply to both groups’ extraterritorial operations and business relationships."

Working Group statements and submissions

• Recommendations from the Working Group on Business and Human Rights regarding a legislative proposal on human rights and environmental due diligence in Europe – Letter to European Commissioner for Justice, Didier Reynders (Oct. 2020)
• Submission letter from the Working Group on Business and Human Rights to the consultation on the European Commission's sustainable corporate governance initiative (Feb. 2021)

Other resources

The Office of the UN High Commissioner for Human Rights (OHCHR) has produced numerous resources  to help unpack how mHRDD regimes can be designed and implemented in a way that aligns with the UNGPs.