International Bodies

The UN body tasked with authoritative interpretation and monitoring the implementation of one of the two main global human right treaties stated in a General Comment on States Obligations in the context of business activities on June 2017:

• “The obligation to protect entails a positive duty to adopt a legal framework requiring business entities to exercise human rights due diligence (...)

• "This requires States Parties to remove substantive, procedural and practical barriers to remedies, including by establishing parent company or group liability regimes (...)”

Resources

♦ Full text of the Comment here.

The UN body tasked with authoritative interpretation and monitoring the implementation of the Convention on the Rights of the Child issued in 2013 its General Comment No. 16 on states’ obligations regarding the impact of the business sector on children’s rights. The document identified the state duty to respect, protect, and fulfil children’s rights as including:

• “enact legislation that gives effect to the rights of the child by third parties and provides a clear and predictable legal and regulatory environment which enables business enterprises to respect children’s rights (...)”

• “require business to undertake child-rights due diligence.”

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♦ Full text of the Comment here.

The UN body mandated to promote and protect the full realisation of all rights established in international human rights law and the UN Charter issued a report in 2018 examining linkages between human rights due diligence (HRDD) and corporate liability. It clarifies that:

• Mandatory HRDD laws can give companies clarity with respect to human rights due diligence obligations, create a level playing field, give human rights due diligence clear legal force, and prevent adverse human rights impacts.
• “While the use of strict and absolute liability provides incentives to companies to exercise due diligence activities to avoid liability, allowing a strict liability defense based upon human rights due diligence in appropriate cases can potentially ensure even higher levels of vigilance.”
• State initiatives must encourage “meaningful human rights due diligence by companies” as opposed to “[s]imple, compliance-focused ‘check box’ approaches (...) whereby a company engages in procedural steps without meaningfully focusing on outcomes.”

Resources

♦ Full report to the HRC on “Improving accountability and access to remedy for victims of business-related human rights abuse: The relevance of human rights due diligence to determinations of corporate liability.”

The UN body mandated to promote and protect the full realisation of all rights established in the international human rights law and the UN Charter presented in 2016 its report on accountability and remedy for victims of business-related human rights abuses project, where it recommended that states: 

• “Develop policies and legal reforms (...) which take into account the particular challenges arising from complex global supply chains.”

The Guidance included as one of the key policy objectives to that end, that:  

• “14: The principles for assessing corporate liability under domestic private law regimes are properly aligned with the responsibility of companies to exercise human rights due diligence across their operations."

• "14.1 Domestic private law regimes take appropriate account of effective measures by companies to identify, prevent and mitigate the adverse human rights impacts of their activities."

• "14.2 Domestic private law regimes take appropriate account of effective measures by companies to supervise their officers and employees to prevent and mitigate adverse human rights impacts.”

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♦ Final report to the HRC on "Improving accountability and access to remedy for victims of business-related human rights abuse."

On 26 June 2014, the UN Human Rights Council adopted its Resolution 26/9 on the Elaboration of an international legally binding instrument on transnational corporations and other business enterprises with respect to human rights. The resolution created an Open-Ended Intergovernmental Working Group with the mandate to:

• “elaborate an international legally binding instrument to regulate, in international human rights law, the activities of transnational corporations and other business enterprises.”

The Resolution also provided that:

• “the first two sessions of the open-ended intergovernmental working group shall be dedicated to conducting constructive deliberations on the content, scope, nature and form of the future international instrument, in this regard”

• “Further decides that the Chairperson-Rapporteur of the open-ended intergovernmental working group should prepare elements for the draft legally binding instrument for substantive negotiations at the commencement of the third session of the working group on the subject, taking into consideration the discussions held at its first two sessions”

Discussions during the first two sessions have tackled the need and avenues to make parent companies responsible for the impacts of their subsidiaries and business relations, including aspects such as duty of care or mandatory human rights due diligence.

Resources

♦ UN Human Rights Council Resolution.

♦ Business and Human Rights Resource Centre (BHRRC) Section on the Treaty.

The body mandated by the UN Human Rights Council to promote the effective implementation of the UN Guiding Principles on Business and Human Rights issued a report to the seventy-third session of the General Assembly held in 2018. In it, they stress:

• the importance of “[u]sing legislation to create incentives to exercise due diligence, including through mandatory requirements, while taking into account elements to drive effective implementation by businesses and promote level playing fields.”

• that such legislation, to be effective, should include the “carefully targeted use of strict liability concepts which make appropriate use of evidence of adequate due diligence as possible legal defence to encourage robust human rights due diligence processes (see A/HRC/38/20/Add.2).”

The report emphasises that "[l]aws help to set clear expectations for businesses," and cites recent legal developments as "contributing to the integration of corporate human rights due diligence expectations into national laws." Specifically:

• “The most notable development is the law introduced in France in 2017 (...) Despite limitations, including the limited number of enterprises covered by the law, it is a welcome development that other Governments should learn from.”

• A legal initiative on mandatory human rights due diligence in Switzerland is currently also being considered by the Swiss Parliament. If adopted, it would be another positive development."

Resources

♦ Report of the Working Group on the issue of human rights and transnational corporations and other business enterprises

♦ Information on French Duty of vigilance law

♦ Information on Swiss Responsible Business Initiative and parliamentary counter-proposal

The body mandated by the UN Human Rights Council to promote the effective implementation of the UN Guiding Principles on Business and Human Rights addressed a series of recommendations to the G20 ahead of its 2017 summit. They stressed that:

• “Regulation provides one means in the government “smart mix” toolbox to drive business respect for human rights, including throughout supply chains, often by means of human rights due diligence and related reporting requirements. (...).”

• “The G20 should recall that the Guiding Principles clarify that companies are not only expected to address human rights impacts that they cause or contribute to through their own activities, but also the impacts with which they are directly linked through operations, products or services by their business relationship.”

“This includes exercising human rights due diligence across value chains – and not merely at the first tier. (...) Some G20 governments recently have led the way by enacting legislation that aims to embed respect for human rights in supply chains. The 2015 UK Modern Slavery Act and the 2017 French “duty of vigilance” law are illustrative of this trend.”

Resources

♦ Full letter here.

The OECD stated in its report on the implementation of the Recommendation on Due Diligence Guidance for Responsible Supply Chains of Conflict Minerals published in April 2016, that:

“Regulatory measures have had the largest impact in terms of promoting responsible sourcing of minerals among businesses. While voluntary standards have a role to play in promoting uptake, especially among the more progressive businesses, well-designed regulatory approaches have provided the strongest impetus for business to change how they operate.”

Resources

♦ Full document here.