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As part of our longer term project, entitled, The current state and future trajectories of human rights due diligence laws, Claire Methven O’Brien and I have been editing a series of marvelous essays for a book tentatively entitled: The current state and future trajectories of human rights due diligence laws: New Legal Norms on Human Rights Due Diligence (Routledge, forthcoming 2025). For that effort, we were excited to bring together some of the most innovative and forward thinking academics, practitioners, and commentators, from universities, non-governmental organizations, business, and government to collectively contribute to a deeper understanding of the emerging law of due diligence, especially as it touches on the human rights and sustainability elements of economic activities whether undertaken by public or private organizations. We have previously posted a discussion draft of the Introduction to the Book, entitled "The current state and future trajectories of human rights due diligence laws" along with the Book's Preface. It follows below and may be accessed from the Book Project's Homepage, or on SSRN.
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The abstract provides some sense of the contents:
This chapter seeks to situate the concept of human rights due diligence from its origins in the UN Guiding Principles for Business and Human Rights. The elaboration of the concept is examined with reference to its development between 2006, the start of the mandate of John Ruggie as Special Representative to the UN Secretary General to the unanimous endorsement of the UNGP in 2011 by the Human Rights Council. The transformation of the concept from an operational level mechanism at the core of the corporate responsibility to respect human rights in the UNGP 2nd Pillar to its key role as the embodiment of compliance-based legality respecting the management of global production through layers of “smart mixes” of public regulatory authority is then considered. The shape of approaches and the debates, especially around mandatory HRDD processes, are dependent, in the first instance, on a better understanding of the possibilities and limits of HRDD built into the UNGPs. The object of this contribution is to provide that more focused consideration of the text of the UNGP and its HRDD principles as a function of the vision for the operation of the UNGP as a whole. This contribution is organized as follows. It first considers the structures and forms of human rights due diligence developed within the UNGP’s 2nd Pillar—the corporate responsibility to respect human rights. It then considers the extent that the UNGP either encourages or suggests a role for the State within the 1st Pillar State duty to protect human rights and the way in which HRDD can be made mandatory within that framework. Lastly, it considers what the remedial Pillar 3 suggests about the inter-relationship between State and enterprise as a function of the overarching objective of the UNGP—to prevent, and if not prevent then to mitigate, and if not to mitigate then to remedy negative or harmful human rights impacts attributable to the economic activity of actors subject to its principles. The flexibility in the transposition of these mechanisms to other regulatory frameworks is then explored.
The submission draft may be accessed HERE. The Introduction and Conclusion follow below.
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2 Human Rights Due Diligence in the U.N. Guiding Principles for Business and Human Rights
Larry Catá Backer
Abstract: This chapter seeks to situate the concept of human rights due diligence from its origins in the UN Guiding Principles for Business and Human Rights. The elaboration of the concept is examined with reference to its development between 2006, the start of the mandate of John Ruggie as Special Representative to the UN Secretary General to the unanimous endorsement of the UNGP in 2011 by the Human Rights Council. The transformation of the concept from an operational level mechanism at the core of the corporate responsibility to respect human rights in the UNGP 2nd Pillar to its key role as the embodiment of compliance-based legality respecting the management of global production through layers of “smart mixes” of public regulatory authority is then considered. The shape of approaches and the debates are dependent, in the first instance, on a better understanding of the possibilities and limits of HRDD built into the UNGPs. The object of this contribution is to provide that more focused consideration of the text of the UNGP and its HRDD principles as a function of the vision for the operation of the UNGP as a whole. This contribution is organized as follows. It first considers the structures and forms of human rights due diligence developed within the UNGP’s 2nd Pillar—the corporate responsibility to respect human rights. It then considers the extent that the UNGP either encourages or suggests a role for the State within the 1st Pillar State duty to protect human rights and the way in which HRDD can be made mandatory within that framework. Lastly, it considers what the remedial Pillar 3 suggests about the inter-relationship between State and enterprise as a function of the overarching objective of the UNGP—to prevent, and if not prevent then to mitigate, and if not to mitigate then to remedy negative or harmful human rights impacts attributable to the economic activity of actors subject to its principles. The flexibility in the transposition of these mechanisms to other regulatory frameworks is then explored.
1 Introduction
On 20 March 2025, the five members of the U.N. Working Group on Business and Human Rights (WGBHR), a techno-political special procedure of the United Nations,[1] created in part to “promote the effective and comprehensive dissemination and implementation of the” UN Guiding Principles for Business and Human Rights (UNGP),[2] issued a statement.[3] That statement sought to add the weight and authority of the WGBHR to efforts to avoid revising the scope and applicability of what was emerging as a robust European regulatory framework for the creation of a multi-regulatory system of mandatory human rights due diligence that aligned public policy objectives with enterprise operations.[4] Those revisions, the so-called Omnibus proposals,[5] had the objective of scaling back a set of integrated regulatory measures that created what might have been considered the first stage of a comprehensive imposition of mandatory measures related to and implemented in part by human rights due diligence (HRDD) that were a “key step in implementing the UNGPs.”[6]
To the WGBHR’s thinking, mandatory measures, including human rights due diligence, constituted an unalterable forward movement along a path toward the appropriate realization of the UNGP[7] with respect to which further compromise would eviscerate objective.[8] That raises the question around which this contribution is organized: the extent to which human rights due diligence is mandated in the UNGP, or put differently, the issue of whether mandatory human rights due diligence (in the form of legal measures) is itself a mandatory element of the UNGP. The answer is that mandatory public human rights due diligence measures are themselves not required in the UNGP,[9] but are also not prohibited.[10] As a baseline a system grounded in the expectation of private mandatory HRDD measures in markets supported by a smart mix (UNGP Principle 3 Commentary) of measures—mandatory, policy, and private.[11]
A sharp line, then, might be usefully drawn between the broad scope within which actors may develop and apply policy objectives that conform to the UNGP, and what the UNGP actually provides in its text. In that sense, and as a matter of political/policy choices consistent with the UNGP, the WGBHR might indeed assert the view that as a policy matter a system of mandatory public (legal) HRDD objectives might best align with the UNGP. However, that policy declaration, whatever its narrative effect, has no mandatory consequence; it cannot change the underlying framework of the UNGP which itself permits the construction and operation of systems of non-mandatory measures or mandatory measures under private law regimes in markets.[12] Thus, while the policy positions developed under the aegis of the WGBHR and the U.N. Geneva apparatus may indeed be the better policy/political choice, the UNGP itself does not suggest that it is the only or the best choice consistent with its text.
The object of the chapter is to take a deep dive into human rights due diligence within the framework of the UN Guiding Principles for Business and Human Rights. It helps to understand HRDD as first a normative project (UNGP Principles 11-15); as a governance and governance coordination project (UNGP Principle 16), as a process for the vindication of those whose human rights have been adversely impacted (UNGP Principles 17-21), as a remediation project (UNGP Principle 22), and as a project of prioritization of legal compliance and of addressing impacts (UNGP Principles 23-24). From that deep dive one is better able to understand the framework from which it is possible to understand mandatory HRDD from within the UNGP conceptual universe. That understanding brings into the equation the close intertwining of the State duty to protect human rights (UNGP Principles 1-4, 7) and the access to remedy principles (UNGP Principles 15, 28-30) with HRDD. Lastly these provide insights into the plausible pathways to mandatory HRDD systems both as trajectories and relationship between the UNGP project and current conceptualizations of due diligence and of the project of due diligence legalization within national legal orders.
This contribution is organized as follows. It first considers the structures and forms of human rights due diligence developed within the UNGP’s 2nd Pillar—the corporate responsibility to respect human rights. It then considers the extent that the UNGP either encourages or suggests a role for the State within the 1st Pillar State duty to protect human rights and the way in which HRDD can be made mandatory within that framework. Lastly, it considers what the remedial Pillar 3 suggests about the inter-relationship between State and enterprise as a function of the overarching objective of the UNGP—to prevent, and if not prevent then to mitigate, and if not to mitigate then to remedy negative or harmful human rights impacts attributable to the economic activity of actors subject to its principles.
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4. Conclusion
What emerges from a close reading of the UNGP with respect to HRDD may be summarized this way. First, HRDD is to be distinguished from State efforts to create a legal basis for HRDD within their domestic legal orders. HRDD was designed as an expectation, routed in core behaviors of enterprises in markets and relating to their economic activities. Second, HRDD exists autonomously of whatever legal frameworks a State may should to embrace or ignore with respect to a State’s binding obligations under international law, or which may be absent from or an element of a State’s domestic legal order. Third, HRDD in the 2nd Pillar is put forward as a flexible framework. It was not written as or in substitution of legislation. It is not meant to be read as law, but rather as operating instructions that are grounded in discretionary decision making, in flexible processes, and in contextual variation. These variations revolve around the organizing core of the HRDD process—the foundational objectives of UNGP Principles 11-15. But a simple transposition of the UNGP HRDD Principles into and as law is unrealistic. Fourth, States are free to transpose whatever parts or forms of HRDD that they, in accordance with their democratic processes, deem worthy of inclusion in their domestic orders. That transposition can take a variety of forms and be manifested as law, regulation, policy, or encouragement. The transposition may be limited to the spirit of HRDD as manifested in the UNGP’s 2nd Pillar, or it may be a faithful transposition of its terms and operating rules. One would necessarily expect that national mandatory HRDD regimes would vary, and sometimes vary widely, as a function of the political-economic system of the legislating State. Fifth, whether to not transposed into law as a mandatory measure of some kind, HRDD is intimately connected with the State duty to protect human rights. The State duty exists autonomously of, and is grounded in norms and expectations that may vary widely from, the uniform rules, norms, and expectations on which HRDD processes and objectives are grounded. But with respect to States HRDD serves as a critical instrument for fulfilling its duty in contextually relevant ways. Whatever that may be, what clearly emerges is that HRDD constitutes a critical element of a State’s smart mix of measures, and that those smart mixes may vary widely from State to State and still adhere to the spirit of the UNGP. Sixth, HRDD is also intimately connected to the Access to Remedy provisions of UNGP Principles 25-31. The remedial provisions are an integral part of the critical objective of HRDD to prevent and mitigate actual or potential adverse impacts where possible, and to provide remedy as quickly, fairly, and directly as possible in the circumstances.
It is with that in mind, that, in approaching issues of HRDD as market behaviors/expectations systematized and rationalized, as an element of the governance architecture of States or of international organizations, and as an element of prevention, mitigation and remedy, one must distinguish between the broad range of options and actions permitted under the UNGP, and the political choices that collectives may make and that politically infused stakeholders may desire in accordance with their own views of the “best” approach.[13] That distinction between political determinations of best courses to follow (always contextually driven and inherently temporally mutable), is sometimes less remembered than it ought to be as critical stakeholders devote their resources, passions, and ideals to what they each, in their own way, view as the path to the perfection of the UNGP. That brings one back to where one started—the WGBHR statement regretting the efforts of European stakeholders to revise the breadth and application of three critical regulations that sought to transpose a European vision for a mandatory HRDD regime in the form of the Omnibus.[14] There was, of course, nothing wrong with that. And one would expect the WGBHR, as a quasi-official organ, to advocate as they like for whatever vision of the UNGP and their transposition to the legal regimes of States or in the market, as they think best aligns with their beliefs about the way things ought to work. But there is a vast difference between a robust engagement in the politics of the UNGP and its applications, and the UNGP itself. The careful reading suggested in this essay appears to support both the WGBHR and their political opponents with respect to what the UNGP compels and what it permits.
And that, perhaps is the more fundamental lesson of the framework developed within the UNGP for HRDD, and its relation to both the duties of States and the obligation of States and others to facilitate effective remedial access: context matters and the UNGP, focused on a context specific objective to prevent and mitigate where possible and otherwise to remedy adverse human rights impacts, by assigning to both risk/severity based risk-bearing and risk-controlling functions, to States under the 1st Pillar and enterprises under the 2nd Pillar, was fashioned flexibly enough to provide many pathways to that singular perfection, the avoidance, mitigation or remedy of adverse human rights impacts in economic activity. Beyond that one reverts to the world of politics, ideology, and the values that make possible the belief in and politics of perfection, and with it to the peculiarities and the pragmatic part of SRSG Ruggie’s principled pragmatism.[15]
[1] Human Rights Council A/HRC/RES/ 17/4 (6 July 2011), available [https://docs.un.org/A/HRC/RES/17/4], last accessed 3 April 2025.
[2] United Nations, Guiding Principles on Business and Human Rights: Implementing the United Nations ?Protect, Respect and Remedy” Framework (NY & Geneva: United Nations, 2011).
[3] U.N. Working Group on Business and Human Rights, Statement by the United Nations Working Group on Business and Human Rights on the European Commission’s “Omnibus simplification package,” available [https://www.ohchr.org/sites/default/files/documents/issues/business/workinggroupbusiness/wgbhr-statement-19-03-2025.pdf] last accessed 2 April 2025 (hereafter WGBHR Statement).
[4] The centerpiece of the WGBHR Statement was the European Union’s (EU) Corporate Sustainability Due Diligence Directive (CSDDD), Directive (EU) 2024/1760 of the European Parliament and of the Council of 13 June 2024 on corporate sustainability due diligence and amending Directive (EU) 2019/1937 and Regulation (EU) 2023/2859 (Text with EEA relevance).
[5] Omnibus I — COM(2025) 801 “Proposal I”, available [https://finance.ec.europa.eu/document/download/29624c4a-94e1-4b47-b798-db7883f79c87_en?filename=proposal-postponing-requirements-csrd-transposition-deadline-application-csddd_en.pdf] last accessed 3 April 2025; and Omnibus I — COM(2025) 812 “Proposal II”, available [https://finance.ec.europa.eu/document/download/161070f0-aca7-4b44-b20a-52bd879575bc_en?filename=proposal-directive-amending-accounting-audit-csrd-csddd-directives_en.pdf], last accessed 3 April 2025.
[6] WGBHR Statement, p. 1.
[7] Omnibus I — COM(2025) 801 “Proposal I”, available [https://finance.ec.europa.eu/document/download/29624c4a-94e1-4b47-b798-db7883f79c87_en?filename=proposal-postponing-requirements-csrd-transposition-deadline-application-csddd_en.pdf] last accessed 3 April 2025; and Omnibus I — COM(2025) 812 “Proposal II”, available [https://finance.ec.europa.eu/document/download/161070f0-aca7-4b44-b20a-52bd879575bc_en?filename=proposal-directive-amending-accounting-audit-csrd-csddd-directives_en.pdf], last accessed 3 April 2025.
[8] But see Jack Snyder, Human Rights for Pragmatists: Social Power in Modern Times (Princeton: Princeton University Press, 2022), 22, 68, 71, 126, 134, 141–42, 244 (suggesting a pragmatic turn in the politics of human rights progressive reform).
[9] UNGP Principle 3 describes an expectation that State will meet their duty to protect human rights through enforcement of law, coordination among legal and policy initiatives, effective guidance, and encouragement. Ibid., Principle 3(a)-(d).
[10] Ibid., Principle 3(d) (“States should. . . Encourage, and where appropriate require, business enterprises to communicate how they address their human rights impacts”).
[11] Ibid., Principle 3 Commentary (“States . . . should consider a smart mix of measures – national and international, mandatory and voluntary – to foster business respect for human rights”).
[12] Sally Wheeler, Global production, CSR and human rights: the courts of public opinion and the social license to operate,” 19(6) (2015) The International Journal of Human Rights 757-778 (“Human rights observance by business it seems is being returned to the marketplace of consumption for adjudication by a range of actors with very different agendas” ibid., p. 771).
[13] Consider Rachel Legislating for Human Rights Due Diligence: How Outcomes for People Connect to the Standard of Conduct (Shift August 2021), https://shiftproject.org/hrdd-outcomes-standard/; Barral Diego, The Legal Case for Human Rights Due Diligence, supra.
[14] Text and notes 1-11.
[15] Cf., Surya Deva, “Mandatory human rights due diligence laws in Europe: A mirage for rightsholders?,” (2023) 36 Leiden Journal of International Law 389–414.
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