The Supranational Due Diligence Standard in the Making: The Evolving Landscape for Business Activity within the EU Internal Market

In March 2021 the European Parliament urged the European Commission to submit a legislative proposal on corporate due diligence and accountability. The Commission is expected to do so this year. This paper argues that the intended introduction of a mandatory corporate due diligence standard into EU law is an evolutionary rather than revolutionary step in the process of making economic operators accountable for negative impact on people, environment or good governance. The elaboration of the supranational due diligence standard builds on the already existing legislative, soft law and judicial instruments within the EU. The paper attempts to outline possible outreach of the political compromise in the EP as well as that of the national debates and concludes by discussing how the emergence of national and supranational corporate due diligence standards will reshape the landscape for businesses active within the EU Internal Market.

HRDD – a legal innovation or simply a matter of consistency of the Law?

The paper places the innovative approach of the UN-guiding principles on business and human rights into the context of the great lines of development of legal culture. Recognition of equal dignity of all humans was claimed by the revolutions of the late 18th century. This may be considered as the most substantial turn in legal thinking about humanity. In the following centuries this concept was implemented step-by-step, focused on the Nation-State. The discourse evolved in public law, neglecting the fact that since pre-colonial times European businesses caused major harm to human dignity all over the earth. In parallel to the successful ring-fencing of State powers, the awareness is growing that business profits are unacceptable when drawn from abusing human dignity. In this perspective, holding business responsible for the respect of human rights appears as an adjustment improving the coherency of the legal order, closing a gap and opening the path for a new generation of public law.

International Consensus on Human Rights: Status quo, Problems, Perspectives

A common opinion on certain basic values is a precondition for any open, honest and fruitful dialogue. However, the present state of international relationships reveals the opposite: aiming at realizing unilateral strategies, states show little interest in considering the positions of their geopolitical vis-à-vis. The rivalry for world supremacy overwhelms all attempts to find mutually acceptable solutions, while the emphasis of historical and cultural uniqueness ruins the very ground for negotiations. Human rights which aim to protect secure living conditions, healthy environment and individual self-realization give a chance to find a common divisor and a starting point for inter-state cooperation. Considering the growing isolationist tendencies, their unifying potential might well be the only possibility to prevent further alienation in this present period of ubiquitous distrust.

Human Rights Diligence: The Hijacking of Regional Human Rights Mechanisms

Since its inception, the international human rights system has served as a stage for significant political contestation. One recent manifestation of this is reflected in the Organization of Islamic Cooperation’s (OIC) creation of an Independent Permanent Human Rights Commission (IPHRC). An examination of the IPHRC’s structure and activities reveals a sophisticated and concerted effort to subvert the foundational premise of human rights for everybody everywhere. This effort advances the relativistic interests of its state masters and emboldens illiberal and authoritarian tendencies on the global stage. Consequently, the paper argues that the failure to mount an effective response to the IPHRC’s emergence as a valid regional rights mechanism risks abdicating human rights diligence in the international arena, and concludes by offering several recommendations aimed at preventing the internal commandeering and discrediting of the international human rights system.

The territorial scope of national legislation in the field of Business and Human Rights

Several European states are considering legislating, or have already legislated, in the area of responsible business conduct to require companies to respect certain human rights and environmental standards in their operations, including in their activities abroad. The territorial scope of such standards and their extraterritorial dimensions raise questions of international law. The article qualifies the different aspects of the scope of application of such legislation from the perspective of international law and demonstrates that we can distinguish three distinct strands of the territorial scope of application of such legislation. This typology facilities the debate on the geographical scope and legitimacy of such domestic regulations from the perspective of human rights obligations and state sovereignty.

Human Rights Due Diligence and its Relation with Corporate Social Responsibility, Investment and Risk Management in the EU Context: an Innovative Trend in Public Law

The EU regulatory approach upon issues of corporate governance and risk management is changing, especially after the last world economic crisis and the COVID-19 pandemic. Sustainability and long-term shareholder engagement are widely debated, while growing thoughtfulness about human rights guarantees in corporate’s context has only led to few practical measures. Such guarantees, as detailed by the UN Guiding Principles on Business and Human Rights, should be incorporated into the corporate governance rules of EU law. Binding norms and orientations on human rights due diligence processes are needed both from a social responsibility perspective, for the corporation’s benefit in terms of investment attraction and risk mitigation. Such rules will be part of a new generation of public law, insofar as they not only ensure a better performance of the social responsibility of subjects of private law, but also enable States to better perform their own human rights duties.