At the request of the European Parliament’s Subcommittee on Human Rights, two briefing papers have been prepared to highlight key human rights considerations to inform the European Parliament’s position on proposed EU Mandatory Human Rights Due Diligence legislation (announced at the end of April 2020 by EU Commissioner for Justice Didier Reynders).
EU Member States (and other countries) have taken diverse approaches to human rights due diligence legislation, including on the laws’ substance, application, scope, and monitoring and enforcement mechanisms. The purpose of the two briefing papers is to examine these existing and proposed laws, as well as international human rights laws, in order to provide concrete, actionable recommendations for the EU and Member States to inform the development and implementation of an EU-wide law.
Briefing 1: Substantive elements of potential legislation on human rights due diligence
Prepared by Prof. Dr. Markus KRAJEWSKI, Chair of Public Law and International Law, Friedrich-Alexander University Erlangen-Nürnberg, Germany; and Beata FARACIK, President of the Board, Polish Institute for Human Rights and Business, Poland
This briefing paper reviews existing legislative approaches to mandatory human rights due diligence (mHRDD) and makes recommendations on the substance of the proposed EU legislation, including type and scope of human rights covered, type of companies and business activities covered, and possible implementation mechanisms. The authors outline three key elements to be considered in future HRDD legislation:
- Scope of human rights covered: “Any future mHRDD legislation should cover all human rights. To clarify what this refers to, it is important to emphasise the UDHR, the two covenants, further global human rights treaties, the ILO core standards and other internationally accepted instruments of human rights, such as the UNDRIP.” The authors note that legislation should also refer to other core human rights conventions on women, children, persons with disabilities and migrant workers, as well as international humanitarian law and issue-specific standards on topics like armed conflict and the environment.
- Types of human rights violations covered: “Potential HRDD legislation [should not be] limited to severe violations but cover all types of violations. Legislation could however build on the language used in UNGPs Principle 24 stating that when companies need to prioritise, they should focus on situations and activities with more severe impacts.”
- Companies covered: “Overarching mHRDD legislation should cover all companies – either domiciled in an EU Member State or placing products or providing services in the internal market – regardless of their size and take a non-sector specific approach.” At the same time, the legislation “should address the special challenges of small and medium enterprises (SME) and/or specific sectors through various regulatory options. … One of the options could be the adoption of a phased approach allowing smaller companies to start implementing the full set of obligations at a later stage.”
- Business activities covered: “Future HRDD legislation should make explicit its application not only to the company’s own activities, but also other business relations, including the supply chain. For greater clarity, it would also be beneficial for the legislation to state that it affects not only first tier contract partners, but that a company’s obligations and influence must also extend to n-tier suppliers along the value chain.”
- Based on the UNGPs: The authors highlight “recommendations from both the EP and non-state actors, who point to the need for basing future mHRDD legislation on such recognised international frameworks as the UNGPs and OECD Due Diligence Guidance for Responsible Business Conduct, that set out the HRDD process in order to ensure the approach’s conformity and coherent minimum standard.”
- Enforcement and implementation: the authors suggest that “it may not be possible to adopt one implementation mechanism which would be universally suitable and effective.” Therefore, they recommend that countries determine implementation mechanisms for themselves, or that they aim at “a mix between EU and Member State responsibilities and mechanisms.” They also recommend that HRDD legislation should draw on multiple types of enforcement mechanisms, “including administrative, civil and possibly even criminal law instruments together with sanctions in requiring states” in order to have a sufficiently deterrent effect on companies.
Briefing 2: EU human rights due diligence legislation: Monitoring, enforcement and access to justice for victims
Prepared by Claire METHVEN O’BRIEN, Chief Adviser Human Rights and Business, Danish Institute for Human Rights, Denmark; and Olga MARTIN-ORTEGA, Professor, University of Greenwich, UK
This briefing paper explores different options for monitoring and enforcing future EU human rights due diligence legislation. It also discusses the role of mHRDD legislation in contributing to access to justice and remedy for victims of human rights abuses linked to companies. In addition to recommendations for the EU and Member States, the paper provides specific recommendations for companies.
- Monitoring: The authors underscore that “monitoring is intrinsic to the process of human rights due diligence, as the UNGPs and other relevant guidance (e.g. EC, 2017; OECD, 2018) make clear.” In an effective corporate human rights management approach, companies need to monitor the implementation of their human rights management approach on an ongoing basis, and maintain the necessary feedback channels and agility to respond to issues quickly and thoroughly. However, external monitoring of human rights due diligence “is also essential.”
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- Effectiveness: the authors recommend that proposed due diligence legislation should require companies to conduct five key activities, in order to ensure the law’s effectiveness:
- “Undertake periodic monitoring to address inter alia their business’ structure, activities, actual and potential human rights risks and impacts, complaints received, and effectiveness of remediation, as a required element of human rights due diligence and in line with the scope of due diligence duty prescribed by the legislation.”
- “Establish an alert/complaint mechanism open to workers and third parties.”
- “Adequately involve stakeholders, including workers, in the design and operation of monitoring arrangements under the due diligence process.”
- “Periodically disclose information on company monitoring and its outcomes; and publish this, in a standardised format, based on an adequate reporting framework, using appropriately prominent and accessible media (e.g. homepage).”
- “Secure board-level approval for monitoring schemes and reports.”
- Remedy: The authors point to the legal and practical obstacles faced by victims to access justice and effective remedy. Therefore, the authors recommend that the legislation impose requirements on companies to ensure access to remedy for victims of human rights abuses, for instance by specifying “adequate remediation as a required element of human rights due diligence in line with the scope of due diligence duty prescribed by the legislation” and by requiring “companies to monitor and disclose information relating to due diligence and its outcomes and to establish, monitor and report on the operation of alert/complaint mechanisms.”
