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I am delighted to pass along information about a quite interesting blog symposium put together by the wonderful folks at Verfassungsblog in cooperation with the German Institute for Human Rights. The theme of this blog symposium project is "Unboxing the New EU Corporate Sustainability Due Diligence Directive." The blog symposium's concept statement suggests its breadth and focus:
There is much to unpack in the now final text of the EU Corporate Sustainability Due Diligence Directive. In partnership with the German Institute for Human Rights, this blog symposium discusses the Directive’s scope on human and environmental rights, its extraterritorial reach, the role of National Human Rights Institutions, accompanying measures for corporations, and delves into critical issues such as access to justice for rightsholders, administrative oversight, and the underlying neo-colonial context of the law-making process. (Unboxing the New EU Corporate Sustainability Due Diligence Directive").
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The blog symposium includes a large number of topnotch contributors. They include
Lots of food for thought, especially around the premises, principles, and approaches to application in the context of mandatory measures based regimes. Franziska Oehm's initiating essay, Unboxing the New EU Corporate Sustainability Due Diligence Directive, puts the issues to be considered into perspective. Other essays touch on, among other important topics, The Corporate Sustainability Due Diligence Directive beyond Europe; The Unintended Consequences of Mandatory Due Diligence; Dividing the Indivisible; A Comparative Analysis between the Corporate Sustainability Due Diligence Directive and the French and German Legislation; National Human Rights Institutions – Critical but, Overlooked Actors; Conditions of Corporate Civil Liability in the Corporate Sustainability Due Diligence Directive; Access to Supply Chain Justice?; and Harmonization Pains but Stakeholders’ Gain.
CS3D provides a quite well developed framework along the continuum of possibilities of "smart mixes of measures" imagined in and through the UN Guiding Principles for Business and Human Rights. It represents a maturing EU version of the legal mandatory measures school of UNGP application, but in its multi-lateral, national measures coordination aspects. Within that legal mandatory measures school it applies choices respecting business guidance and extraterritoriality (UNGP Principles 1-2) as well as accountability and remedial measures that will likely prove, one way or another to be influential. It builds on the significant underlying principle of the UNGP Principle 3 that State based or sourced mandatory and voluntary measures must be the product of a time sensitive dialectic between contemporary contextual needs and the regulatory (mandatory and voluntary) measures that are necessary to fill gaps, develop norms and apply them effectively in space, lace and time.
Yet it is also important to keep in mind that there are other schools of application that are being developed--some of them more and some less compatible with the premises and objectives of CS3D (understood as a normative framework or as a process-structural set of preference techniques). A potentially significantly distinct enough variation within the legal mandatory measures school is the internationalist legal mandatory measures school; one that focuses on international instruments as the superior and organizing source of both norms and structuring techniques. The current efforts to develop and offer some sort of international legally binding instrument for business and human rights (and in this way falling within the obligation premises of the UNGP General Principles) represents one such effort (see here). These then may generate efforts to fins either common ground or to mold the internationalist sub-school within the EU multi-lateral mandatory measures school. And the third may be the Socialist legal mandatory measures school, developed by the People's Republic of China, the normative basis of which may differ in some (substantial) from the other schools (more richly steeped in the preference of liberal democratic principles). This Socialist mandatory measures school reflects a preference for development as the driving force of analysis and is deeply contextual but as a function of the overarching normative framework of Marxist-Leninist vanguardism (see, e.g., "The Chinese Path for Business and
Human Rights"[白 轲 "工商企业与人权的中国道路"]).
At the same time, it ought to be borne in mind that there are still strong streams of voluntary measures schools. These appear to exhibit substantial variation. Each includes some "smart mix" of measures that may be more oriented toward markets driven focus and may include compliance based disclosure regimes with nudging elements. They include substantial measures targeting private law arrangements within markets that shape expectations but avoid public law management (eg here). A variation that appears to be emerging as a U.S. voluntary measures school. This approach combines markets driven compliance with substantial state targeted intervention through human rights infused sanctions measures and takes a variety of forms (here, here, and here). East Asian states provide a window toward a more compliance and markets based voluntary measures nudging regimes, including guidance measures and incentives, but that remain true to the UNGP but which shy away from mandatory measures approaches (see, here, here, and here). Other places in the Global South add contextually rich variation (eg here, here, and here; considered together in essays organized here).
It might also be useful to remind oneself of the following in working through these variations of smart mixes and the arguments of their critics and advocates. First, the UNGP rejected the notion of a one size fits all set of "best" smart mixes; context matters, including ideological, historical, political, cultural, and social context. Second, even the "best" smart mix is not eternal, nor is it likely that one can craft text that would be flexible enough to survive the realities of historical change. Third, smart mixes reflect subjective rather than objective application of the UNGP principles in the sense that they each represent an articulation of the way in which a collective views the world and its choices within it; the only thing that remains a constant is the measure against which such mixes are evaluated--adverse human rights impacts. Fourth, but even adverse human rights impacts are themselves subject to quite distinctive means of identification and measurement--as a function of the collective world views of those seeking to grasp both their identity and their measure. Fifth, it is important to note, then, that the great value of the UNGP are as guardrails against conceptual disintegration; the organizing concepts permit a wide scope of application, but they also produce the conceptual borders within which those choices may be made. It is within that context that the Verfassungsblog "Unboxing the New EU Corporate Sustainability Due Diligence Directive" significantly enrich the discussion both about smart mixes and the EU legal mandatory measures school.
The essay abstracts with links to the full text follow below.
The Corporate Sustainability Due Diligence Directive beyond Europe
The CSDDD is a game changer that forces a large number of European States to level the legislative landscape with regard to corporate responsibility for human rights and environmental impacts, as well as in relation to liability and access to justice. And yet, its reach throughout global “chains of activities” will most likely bring important hurdles for implementation including in relation to the scope of human rights covered in practice; the need for effective capacity-building in transnational chains of activities; the need for a more proactive dialogue and cooperation between the EU and other States; and last but not least, in ensuring consistency between the national implementation of the CSDDD and international and regional human rights obligations.
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The Unintended Consequences of Mandatory Due Diligence
The EU Corporate Sustainability Due Diligence Directive (CSDDD) seeks improvements in companies’ societal impacts but carries risks of negative impacts, including on the developing countries where some supposed beneficiaries are located. Does the CSDDD recognise and mitigate such risks? The blog identifies provisions in the CSDDD that address the unintended consequences that mandatory human rights and environmental due diligence requirements might have in developing countries.
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More of the same or true evolution?
While rights holders are not expressly mentioned as a group of stakeholders in CSDDD, the adoption of this important legislation creates a significant opportunity to involve rights holders to define how the content of the stand-alone article on stakeholder engagement can be filled with legal meaning by soliciting them directly.
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From Paper to Practice
The CSDDD requires companies to carry out due diligence on actual and potential human rights and environmental adverse impacts. This means companies have to identify harmful impacts in their value chains and take appropriate measures to prevent, mitigate, or bring them to an end. In this two-part blog post, we will look at which environmental impacts are covered by the CSDDD and how they are addressed. In this second part, we will discuss how the CSDDD negotiations influenced the design of its environmental provisions and identify missed opportunities. We will conclude by analysing what factors are important to ensure that transposition and implementation remain true to the CSDDD’s objectives.
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New Wine in Old Bottles
The CSDDD requires companies to carry out due diligence on actual and potential human rights and environmental adverse impacts. This means companies have to identify harmful impacts in their value chains and take appropriate measures to prevent, mitigate, or bring them to an end. In this two-part blog post, we will look at which environmental impacts are covered by the CSDDD and how they are addressed. Our intention is to provide a starting point for the debate by summarising the outcome of the legislative process, explaining how we got there, and offering some thoughts on where we might go next.
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Towards Planetary Boundaries for Business?
While the material scope of the EU’s Corporate Sustainability Due Diligence Directive (CSDDD) fell behind civil society demands, it does mandate a degree of environmental due diligence that constitutes a tentative shift towards real corporate environmental accountability. Despite its conceptual restrictions, which are the result of a somewhat polarised legislative process, the CSDDD’s environmental annex provides a provision with potential for the protection of biological diversity: the reference to the Convention on Biological Diversity.
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Dividing the Indivisible
The absence of a number of important human rights instruments from the EU’s Corporate Sustainability Due Diligence Directive, notably for indigenous peoples’ and migrants’ rights, are serious omissions and must be rectified at the EU level during the first review of the directive. Given the status of the CSDDD as a directive, Member States also have the freedom to add these missing instruments during national transposition and should do so in order to further honour their commitments under the UNGPs.
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National Human Rights Institutions – Critical but, Overlooked Actors
National Human Rights Institutions are a critical but often overlooked actor in the context of the European Union’s Corporate Sustainability Due Diligence Directive. As we enter the transposition and implementation phases, National Human Rights Institutions can leverage their unique mandate as human rights experts in their jurisdictions to act collectively and individually to ensure that transposition laws meet human rights standards for an effective implementation.
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A Comparative Analysis between the Corporate Sustainability Due Diligence Directive and the French and German Legislation
This blog post offers an initial comparative glimpse of the most important changes that the Corporate Sustainability Due Diligence Directive (CSDDD) will bring for the respective mandatory human rights and environmental (HREDD) legislation in Germany and France. While both the French Duty of Vigilance Law and the German Supply Chain Act already require effective HREDD, the CSDDD goes a long way in strengthening the requirements and bringing them more in line with international standards.
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Administrative Enforcement of Corporate Human Rights Due Diligence Legislation
Mandatory human rights and environmental due diligence legislation such as the new EU’s Directive on Corporate Sustainability Due Diligence (CSDDD) have received praise and critique in practice and scholarship. This contribution assesses the regime of administrative enforcement contained in the CSDDD and asks if it meets the standards of effective remedy.
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Conditions of Corporate Civil Liability in the Corporate Sustainability Due Diligence Directive
The civil liability provision of the Corporate Sustainability Due Diligence Directive (CSDDD) in Article 29 has been highly debated during the entire drafting and negotiation process of the Directive, but it held on. Where harm occurs, will Article 29 CSDDD fulfill its function to provide a right to remedy for the affected individuals and legal clarity for the companies at the same time?
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Access to Supply Chain Justice?
One of the novel features of the Corporate Sustainability Due Diligence Directive is a private law liability for damages caused upstream in the supply chain. However, liability under substantive law is worthless without procedural rules that allow for its enforcement. Within the context of supply chain liability there are at least two major procedural problems. First, victims affected by supply chain mishandlings might be unable to afford proceedings in Europe. Second, proving that a company has not exercised a sufficient level of diligence can be difficult. Art. 29 para. 3 CSDDD seeks to address those issues.
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Harmonization Pains but Stakeholders’ Gain
The Article 13 EU Corporate Sustainability Due Diligence Directive is home of the meaningful engagement provision. It is significantly more robust than similar provisions in national due diligence legislation in France, Germany and Norway. Despite the fact that a number of differences between EU CSDDD and these national laws is likely to give rise to some “harmonization pains”, one silver lining exists: stakeholders gain some leverage.
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Unboxing the New EU Corporate Sustainability Due Diligence Directive
There is a lot to unpack in the now final text of the Directive. The German Institute for Human Rights offers initial analysis in this blog symposium, which starts with this contribution. The contributions engage with the final text of the Directive and give some initial guidance for interpretation and transposition requirements. Topics covered include a critical reflection on the neo-colonial context of the the law-making process, access to justice and administrative supervision measures for rightsholders, the scope of human and environmental rights that are covered by the Directive as well as the transposition phase with comparative analysis in the context of existing national due diligence legislation, its extraterritorial reach and the involvement of National Human Rights Institutions.
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