Potential of EU Draft Directive on Corporate Sustainability Due Diligence to Contribute to a Coherent Framework of Corporate Accountability for Human Rights Violations

Abstract

Currently, the field of business and human rights is at a crossroads in terms of normative development, as two major legislative instruments are being negotiated at the regional and international levels. The first instrument is a proposal for a directive aimed at ensuring business responsibility for the respect of human rights and the environment within the European Union, or in other words a proposal for a Directive on Corporate Sustainability Due Diligence. The second one is a proposal of a legally binding instrument on transnational corporations and other business enterprises with respect to human rights, commonly referred to as the Third Revised Draft Treaty on Business and Human Rights, which is being developed by the open-ended intergovernmental working group established by the Human Rights Council in 2014. Given such parallel developments, it would seem prudent for the ongoing efforts to be interlinked so as to contribute to creating consistent legal solutions governing corporate accountability for human rights violations at international and supranational fora. This is particularly relevant in the context of rapid globalization, where transnational corporations can exploit legal and regulatory loopholes at the cost of human rights and the environment. This paper analyses the two legislative drafts with the aim of determining to what extent those two draft hard law instruments reflect the applicable international soft law standards and contribute to the creation of a complementary and mutually reinforcing regulatory framework. The analysis shows the differences in the scope and approaches utilized in the two instruments and identifies gaps and shortcomings in the proposed solutions from the standpoint of effective protection of the victims’ rights. The analysis shows that the two proposed legislative texts are for the most part mutually complementary and it points to the ways in which their norms can be read together so as to enable a coherent and consistent legal framework and ensure legal certainty. The authors also argue that the two legislators should utilize the drafting process to address the identified discrepancies in the existing normative framework in order to achieve the best results.