OHCHR Call for Alignment of the EU CSDDD with the UNGPs

Our key takeaway: The UN’s human rights office has spoken. We already have a global consensus that companies have a responsibility to respect human rights in their own activities and across their value chains. We already have a blueprint for companies on how to respect human rights in practice. Look no further than the UN Guiding Principles on Business and Human Rights for answers to all things ‘business and human rights.’ The contents of the UNGPs represent a “principled yet practical logic” which “ended a decades-long debate over the appropriate role of business when it comes to respecting human rights.” Therefore, EU Member States and the European Parliament: Please do not reinvent the wheel. Doing so would jeopardize the very outcomes we are seeking to achieve through this directive. OHCHR calls out four areas in particular for EU institutions and Member States to pay attention to: (1) take a true risk-based approach - taking a full value chain approach; (2) create clear meaningful due diligence actions that differ depending on the company’s mode of involvement with the impact, (3) ensure meaningful consultation is at the heart of human rights due diligence and (4) provide for meaningful accountability measures, including administrative supervision and civil liability. The EU is demonstrating leadership - yes - but only to the extent that it does not undermine years of progress in the field of business and human rights.

The Office of the UN High Commissioner for Human Rights (OHCHR) published ‘Final Call for Alignment of the EU Corporate Sustainability Due Diligence Directive with the UN Guiding Principles on Business and Human Rights’ (October 2023):

• Need for the EU Due Diligence Directive to be aligned in all essential elements with the UNGPs: OHCHR reiterates the importance of the UNGPs when it comes to business and human rights. “There is global consensus that companies have a responsibility to respect human rights in their own activities and across their value chains. That question was put to the UN Human Rights Council just over a decade ago, and the answer was affirmative and unanimous. With the endorsement of the UN Guiding Principles on Business and Human Rights (UNGPs) in 2011, the Council also provided companies with the blueprint on how to meet this responsibility in practice.” The paper delves into the uptake of the UNGPs which has been “swift and broad” - in large part because of its “principled yet practical logic” which “ended a decades-long debate over the appropriate role of business when it comes to respecting human rights.” Therefore: “OHCHR therefore calls on EU Member States and the European Parliament, with the support of the Commission, to adopt a robust Corporate Sustainability Due Diligence Directive that is aligned in all essential elements with the UNGPs.”
  

• A true risk-based approach, with clear expectations of companies: First, OHCHR calls for a true risk-based approach which “means companies should focus first and foremost on the most severe and most likely impacts that they may be involved with in their own activities and across their entire value chains.” In practice, this means that “[t]here is no place for legal loopholes that would allow companies to ignore their most severe adverse impacts, for example because they occur downstream when the company’s products are used by others.” OHCHR points to examples of how companies are feasibly implementing downstream human rights due diligence. Second, OHCHR calls on EU Member States and the European Parliament to ensure that the Directive “clearly differentiate[s] what is expected from a company when it causes or contributes to an adverse impact, or when its operations, products or services are linked to an adverse impact through a business relationship.” In particular, the Directive should recognise “the limits of over-reliance on contracts and audits as the main ‘tools of human rights due diligence and the need for companies to go beyond them if due diligence is to deliver better outcomes for people.” “It is vital that European Union law does not have the effect of discouraging investment in and engagement with business partners in sourcing and production markets beyond the European Union’s borders, for example by incentivizing termination of business relationships instead of longer-term efforts to jointly tackle risks.”
  

• Meaningful consultation and meaningful accountability: Third, OHCHR provides “the Directive should put people – those affected and potentially affected by adverse impacts – at the centre of the due diligence process.” The paper reinforces the importance of “meaningful consultation with those at risk of harm – for instance, with workers and trade unions, local communities, people who use companies’ products and services, and human rights defenders” - including to help inform “a company’s decision to terminate business relationships, once other approaches at addressing impacts have proved unsuccessful.” Fourth, “the Directive should be supported by meaningful accountability measures, including administrative supervision and civil liability.” “Both elements are essential to ensuring people have access to remedy when their rights are harmed, as OHCHR’s Accountability and Remedy Project has shown.” The OHCHR provides further design considerations to consider in this process.