Summary

Momentum for mandatory human rights due diligence legislation

Anna Triponel

July 13, 2020

Momentum continues to build globally for new mandatory human rights due diligence legislation (mHRDD)—most recently in the EU, Germany and Switzerland, among other countries. In this context, the UN Office of the High Commissioner for Human Rights (OHCHR) released a briefing paper outlining key considerations for policymakers in the EU and elsewhere to devise mHRDD regimes that are effective and fair.

Many of these considerations echo the recommendations made to the European Parliament’s Subcommittee on Human Rights in two briefing papers released in June, underscoring that policymakers are increasingly aligned on and committed to realising mHRDD legislation in the near term.

We highlight a few points below that are particularly relevant for companies:

Scope, substance and enforcement:

“In developing mHRDD regimes, decisions need to be made about:

  • the types of companies to which the mHRDD obligations will apply;
  • the nature of the legal obligations which will apply (e.g. whether companies will be judged by standards of conduct, standards of outcome, or both; whether liability will be automatic, or based on proof of fault);
  • the scope of these obligations (e.g. the entities and activities to which the due diligence obligations extend);
  • subject-matter coverage (e.g. whether comprehensive or prioritising specific sectors);
  • the human rights themes and risks targeted (i.e. some may focus on a narrower range of issues and impacts, such as child labour, modern slavery, or sourcing from conflict zones);
  • the way in which, and the mechanisms through which, compliance with legal obligations are to be scrutinised, monitored and enforced;
  • the types of liability that will result from non-compliance (e.g., civil and/or criminal liability), the sanctions that may be imposed, and/or the remedial steps that may be required in the event of noncompliance; and
  • the supporting regulatory architecture and services that may be needed (e.g. guidance, consultations, regulatory effectiveness reviews, education, etc.).”

Policy coherence and potential for inconsistencies:

“In order to ensure ‘policy coherence’ with respect to mHRDD, policy-makers and legislators will need a thorough understanding of the ‘regulatory ecosystem’ in which the mHRDD regime sits. Policymakers and legislators should conduct a thorough review of surrounding legislation and policy initiatives in order to identify the amendments or adjustments that may be needed to ensure:

  • a smooth, mutually reinforcing interface between the mandatory human rights due diligence regime and other legal regimes;
  • that the new regime is capable of meeting its regulatory objectives, that the risks of any negative unintended consequences are identified and addressed, and that businesses are not subjected to any compliance dilemmas (e.g. in the form of conflicting requirements); and

that the regime is able to take full advantage of any opportunities that may be presented by regulation in other areas (e.g. in the form of leverage or incentives to enhance the commercial or reputational drivers for carrying out human rights due diligence activities to a high standard).”

UN Office of the High Commissioner for Human Rights, Mandatory Human Rights Due Diligence Regimes: Some Key Considerations (June 2020)

You may also be interested in

This week’s latest resources, articles and summaries.