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It is always interesting to see examples of the now almost 20 year effort to transform the 2nd Pillar (corporate responsibility to respect) human rights due diligence provisions of the UN Guiding Principles for Business and Human Rights into a First Pillar (state duty to protect) set of corporate legal obligation overseen through regimens of regulatory supervision and judicial intervention (on thios effort and its relñaiton to the UNGP, see, Backer, Larry Catá, Human Rights Due Diligence in the U.N. Guiding Principles for Business and Human Rights (May 04, 2025). Available at SSRN: https://ssrn.com/abstract=5241321 or http://dx.doi.org/10.2139/ssrn.5241321). A recent effort, long in the making, comes form the United Kingdom. Introduced to the House of Lords as a Private Members' Bill (Starting in the House of Lords) by the Baroness Young of Hornsey, the Commercial Organisations and Public Authorities Duty (Human Rights and Environment) Bill means to provide yet another national effort at the legalization of human rights due diligence. It is described this way:
Long title: A Bill to place a duty on commercial organisations and public authorities to prevent human rights and environmental harms, including an obligation to conduct human rights and environmental due diligence, in their own operations, subsidiaries, and value chains in line with international standards; to make provision for civil liability, access to justice for victims, an enforcement body, penalties, and a criminal offence for failures to comply with the duty; and for connected purposes.
It is not an unusual effort. It seeks to effectively subject relevant entities to obligations and penalties for violations of rules, norms, and measures that may not constitute legal obligations within the UK's domestic legal order. It extends the regulatory scope of administrative organs deeply within the micro decision making context of economic enterprises; it erodes notions of privity grounded in a strict liability regime sounding in tort (human rights and environmental impacts) that loosens standing rules in a manner similar to those embraced under OECD proceedings, and extends the reach of the provisions extraterritorially.
One can make what one likes from this effort--driven by politicos, ideology, norms, pragmatism and the like. What it is not possible to argue is that the UNGP itself either requires legalized mandatory human rights due diligence, or that the UNGP has established the ideal form the human rights due diligence is to take beyond the general framework provided.
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 /lexible 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 /lexible 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 ful/illing 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. (Backer, Larry Catá, Human Rights Due Diligence in the U.N. Guiding Principles for Business and Human Rights (May 04, 2025). Available at SSRN: https://ssrn.com/abstract=5241321 or http://dx.doi.org/10.2139/ssrn.5241321)
The text of the Bill follows below.
