Establishing a meaningful human rights due diligence process for corporations: learning from experience of human rights impact assessment

Abstract

The United Nations Special Representative of the Secretary-General on Business and Human Rights, Professor John Ruggie, has constructed a new international framework, which is set to become the cornerstone for all action on human rights and business at the international level. The principle of human rights due diligence (HRDD) is the central component of the corporate duty to respect human rights within that framework. This article argues that Ruggie's HRDD principle contains the majority of the core procedural elements that a reasonable human rights impact assessment (HRIA) process should incorporate. It is likely that the majority of corporations will adopt HRIA as a mechanism for meeting their due diligence responsibilities. However, in the context of the contentious debate around corporate human rights performance, the current state of the art in HRIA gives rise to concerns about the credibility and robustness of likely practice. Additional requirements are therefore essential if HRDD is to have a significant impact on corporate human rights performance -requirements in relation to transparency; external participation and verification; and independent monitoring and review.

Global production, CSR and human rights: the courts of public opinion and the social licence to operate

“…Notwithstanding Ruggie's stated preference 136 for corporations to publicize the methodology they have used to undertake due diligence the absence of any template or indicative methodology in the Framework for constructing the social license makes cross--corporation comparison very difficult for an outsider. 137 However such comparison is an essential tool, surely, if the courts of public opinion are to decide whether a corporation's social license is acceptable and will be maintained. Any opportunity for corporations to learn and share best practice with each other is lost in the absence of a published methodology.…”

Introduction to the Handbook on Human Rights Impact Assessment: Principles, methods and approaches

“…Fourth, HRIA places focus on accountability -including transparency, access to information and access to remedy (e.g., Felner, 2013;González, 2014;Götzmann et al, 2016b;Hamm & Scheper, 2012;Harrison, 2010Harrison, , 2011Harrison, , 2013MacNaughton, 2015;Massarani et al, 2007;Mungoven, 2016;Oxfam America & R&D, 2010;Salcito, 2015;Salcito & Wielga, 2012;UNHRC, 2011aUNHRC, , 2011bWalker, 2009). Transparency is imperative both throughout the impact assessment process, as well as with regard to the results.…”

“…Arguably, this provides greater imperatives for the implementation of measures to address impacts than provided by impact assessment frameworks that are not based on human rights law standards. Relatedly, the emphasis of the human rights framework on access to remedy -both as a right in and of itself as well as a component of accountability -indicates the need for a stronger focus on this in HRIA than what may be required or expected in other types of impact assessment (e.g., Götzmann, 2017;Harrison, 2013;Kemp & Vanclay, 2013;Watson et al, 2013; see also Chapter 23).…”

“…Again, the point is not to devalue the variety of HRDD that is needed to ensure respect for human rights but rather, the point is that this amorphousness in defining good practice HRIA can be problematic from the perspective of impact assessment practitioners, rights-holders, businesses, state actors and others. As suggested by Harrison (2013), without the development of 'shared normative understandings of what the HRIA process should represent, there is a danger that the nomenclature will lose its status as representing a robust evidence-based process of assessing impacts' (p. 115). By documenting, exploring and critically analysing current approaches, this Handbook attempts to make a contribution to further dialogue and debate about the role of HRIA in BHR, including better understanding what 'good practice' can and should entail and how it relates to other due diligence and governance processes that seek to ensure business respect for human rights.…”

“Just Business” – Is the Current Regulatory Framework an Adequate Solution to Human Rights Abuses by Transnational Corporations?

“…GP 21 establishes that TNCs "should" be prepared to provide "sufficient information" to external stakeholders to enable evaluation of how they address human rights impacts. This tenuous wording, combined with the UNGP's "soft" self-regulation, permits an unacceptable degree of latitude in disclosure, enabling TNCs to purport to undertake due diligence without disclosing documentation, 183 thereby undermining its credibility. Likewise, GP 18, regarding the identification of adverse human rights impacts, encourages "meaningful consultation" 184 with external stakeholders, but the extent of such engagement is entirely at TNCs' discretion.…”