The EU’s recent adoption of the Corporate Sustainability Due Diligence Directive (“CSDDD”) (Directive 2024/1760) has brought renewed attention to human rights due diligence (“HRDD”). The CSDDD entered into force on 25th July 2024 and imposes substantive legal obligations on companies and liability for violations of those obligations, including HRDD. It is subject to a two-year transposition period which ends on 26 July 2026 and includes a phased approach over time that gradually expands the remit of companies in scope.
This short note considers some of the origins of HRDD in international human rights law (“IHRL”), and certain of its unique features and contours against the backdrop of a fast-evolving and multitiered legal context with important implications for both states and companies. What are these features and why do they matter today? It offers a conceptual overview of the notion of human rights due diligence established in international law as it attaches to states human rights obligations and looks at how it has evolved and been applied in the context of business, particularly in EU law.
(i) Duty of care
According to Alice Ollino due diligence is “one of the fundamental legal tools to regulate, manage and anticipate risks in international society … one of the principle functions of due diligence obligations is to prevent harms to other states, to avoid or minimize risks to international public interests and global commons and to regulate the conduct of non-state actors when the latter may commit internationally harmful actors or carry out violations of international human rights law” (Ollino 2022, pages 6-7). Consistent with the maxim sic utere tuo ut alienium non laedes under international human rights law, states have a positive obligation to prevent violations or to respond to violations once they occur. HRDD for its part embodies a mandatory duty of care and the principle of “do no harm” underpinning human rights norms. It is a legal tool and standard deployed in a range of contexts – addressed to both public and private actors – specifically designed to address adverse human rights impacts.
(ii) Nature of obligations
HRDD does not of itself constitute a freestanding obligation, but attaches to primary rules, grounding a mandatory duty of care imposing an obligation of conduct rather than result.
Under international human rights law, HRDD is incumbent upon states: while HRDD can attach, or be undertaken pursuant, to binding human rights legal obligations to respect, protect, promote and fulfil human rights, it is most closely associated with the obligation to protect, i.e., act to prevent harm by a third party. The Inter-American Court of Human Rights decision in Velásquez Rodriguez confirmed this, invoking the international responsibility of the State because of the lack of due diligence to prevent the violation or to respond to it as required by the Convention. Similarly, the UN Human Rights Committee has observed that “There may be circumstances in which a failure to ensure Covenant rights … would give rise to violations by States Parties of those rights, as a result of the States Parties’ permitting or failing to take appropriate measures or to exercise due diligence to prevent, punish, investigate or redress the harm caused by such acts by private persons or entities” (General Comment no 31). Consistent with its versatility and adaptability, HRDD can apply to human rights obligations under international, regional, EU and domestic law, and can be undertaken by States or private actors across different legal and policy settings including development projects, legislative proposals, trade agreements and investment treaties.
In the corporate sustainability space, HRDD is incumbent primarily upon companies. The current trend is towards binding regulation in the sphere of business and human rights, particularly in the EU which has, in addition to the adoption of the CSDDD, enacted a range of sustainability legislation including the Corporate Sustainability Reporting Directive and the EU Taxonomy Regulation, the Forced Labour Regulation and the Deforestation Regulation. The CSDDD establishes binding substantive obligations for businesses, including requirements to undertake corporate HRDD: in this instance, the primary rules are those established for companies under the Directive to identify and assess actual or potential adverse impacts and to prevent and mitigate potential advance impacts and bringing actual adverse impacts to an end. In addition, however, under Article 5 of the CSDDD, States have an obligation to ensure that companies conduct risk-based human rights and environmental due diligence. In this provision, the CSDDD incorporates a more classical HRDD obligation on the state to ensure that the corporate HRDD is carried out, akin to the obligation to protect against the interference of third parties. It is also noteworthy that while the CSDDD is primarily focused on corporate HRDD, establishing new obligations for companies, it is also anchored in international human rights law and includes explicit reference to the International Covenant on Civil and Political Rights (ICCPR), the International Covenant on Economic Social and Cultural Rights (ICESCR) and the Convention on the Rights of the Child (CRC). As such, the Directive establishes new obligations for companies under EU law and is grounded in the existing international human rights law obligations of Member States.
Of course HRDD is also very well established as applying to business “responsibilities” under the UN Guiding Principles on Business and Human Rights (“UN Guiding Principles”), the OECD Guidelines or the Voluntary Principles on Security and Human Rights. These voluntary frameworks both rely upon and reinforce existing state obligations relevant to HRDD under IHRL: HRDD is a core common element of both binding and non-binding frameworks: it operates with respect to binding IHRL obligations incumbent on Member States as well as in regard to both binding and non-binding frameworks addressed to businesses. Indeed, the UN Guiding Principles explicitly recognize States IHRL obligations and specifically note the obligation to protect against human rights abuse by third parties, including business enterprises. In this sense, HRDD is a legal tool that should continue to be used by States and public bodies at the same time as its salience grows for businesses and private actors. Put differently, states continue to have obligations to which HRDD attaches even as application has expanded for companies under binding and non-binding frameworks.
While HRDD is common across all, the proliferation of binding and non-binding frameworks militates in favour of a systematic appraisal of their interplay and overlap and what this means for state and business accountability today.
(iii) Proportionality
The parameters, scope and content of HRDD are guided by the principle of proportionality. As its name implies, HRDD mandates diligence that is “due”: in other words, the diligence should be appropriate and proportionate to the risk at hand. The higher the risk, the more fragile the context and the more volatile the conflict, the greater the diligence required by HRDD. In this sense, HRDD is an agile and adaptable legal tool capable of responding to the substantive content of the legal obligation invoked and to the context in which it applies. Like its analogues in public international law articulated by the International Court of Justice (Corfu Channel (United Kingdom of Great Britain and Northern Ireland v. Albania); Pulp Mills on the River Uruguay (Argentina v. Uruguay)), the core functions of corporate HRDD involve the assessment of risk, the assignment of responsibility and the upholding of states’ accountability for human rights. As embodied in the binding CSDDD and in the non-binding UN Guiding Principles, HRDD is risk-based (see e.g., Principle 17 of the UN Guiding Principles). Moreover, in the EU context, one could also argue that HRDD, as enshrined in the CSDDD, embodies the related principle of subsidiarity, pursuant to Article 5 (3) Treaty on the Functioning of the EU. The principle of subsidiarity aims at determining the level of intervention that is most relevant in the areas of competences shared between the EU and the EU Member States, such that the EU may only intervene if it is able to act more effectively than Member States at their respective national or local levels. In the context of the CSDDD the principle underpins the justification for EU regulation in this area, also reflecting a balance between a commitment to the core normative and internal market objectives of the act and the application of its requirements at the national level – favouring and respecting national responses and implementation modalities. This will also likely result in variations in the scope and content of HRDD at the national level according to the specific modalities of transposition and the individual Member State context – again, entirely in keeping with the nature and agility of HRDD as a legal tool and process.
(iv) Constitutive elements of corporate HRDD
Under Principle 15 of the UN Guiding Principles and Article 5 of the CSDDD, HRDD is a process that should be undertaken ex ante and upstream, comprising certain key features or phases, including: identify and assess actual and potential adverse impacts; prevent and mitigate potential adverse impact and bring actual adverse impacts to an end; provide remediation for adverse impacts; ensure meaningful engagement; and, establish notification and complaints processes or procedures. These elements address different parts or stages of a company’s “chain of activities”: they are common, though not identical across both the EU CSDDD and UN Guiding Principles. Important distinctions and variations may emerge especially since the CSDDD is a Directive that is binding on Member States as to the result to be achieved but leaves national authorities the choice of form and methods in its transposition. Similarly, the 2012 OHCHR Interpretive Guide on the Corporate Responsibility to Respect Human Rights, due diligence is “not measured by any absolute standard but depending on the relative facts of the special case. In the context of the Guiding Principles, human rights due diligence comprises an ongoing management process that a reasonable and prudent enterprise needs to undertake, in the light of its circumstances (including sector, operating context, size and similar factors) to meet its responsibility to respect human rights.”
Thus, in the context of modern business, and without prejudice to its essential constitutive elements or its core protection imperative, HRDD should continue to be deployed in a nimble way calibrated to specific contexts. It should not become overly burdensome, formalistic or impractical which could lead to its neglect or improper implementation, and which would in turn be detrimental for human rights protection.
(v) Rationales
While the core function of HRDD is rooted in risk mitigation, it can have as its rationales both economic and human rights justifications. HRDD can sustain normative and instrumental goals and may even advance these simultaneously: what is good for human rights protection can also be good for business. In his recent address to the Global Business School Network for Business and Human Rights Impact Community, the UN High Commissioner for Human Rights has admonished States to work towards “a human rights economy.” Noting that HRDD is increasingly an obligation under domestic and regional legal framework, he has emphasized the UN Guiding Principles’ call to conduct HRDD to “devise their own solutions to mitigate and manage risks, not to do harm, including disengagement when appropriate, and fully respect the rights of people on the ground.” The High Commissioner observed that it is the right thing to do and “makes good business sense, because it helps prevent reputational damage, including boycotts and protests, and exposure to litigation.” Thus, globally, and in the EU context, there is no necessary or inevitable contradiction between the goals of protecting fundamental rights and advancing single market goals: the CSDDD reflects both.
(vi) International legal and policy coherence
EU sustainability legislation exists alongside existing national law and international law, including voluntary frameworks as discussed above. A key priority should therefore be to work to ensure the coherence of concurrently applicable standards: across at least three levels (international, EU and domestic) and two types (binding vs voluntary). The CSDDD explicitly invokes international human rights law, such as the ICCPR, the ICESCR and the CRC to which all EU Member States are party. The UN Guiding Principles had themselves underscored the importance of both vertical and horizontal policy coherence, making explicit provision for States’ binding IHRL obligations in respect of international policy coherence. Principle 8 affirms that: “States should ensure that governmental departments, agencies and other State-based institutions that shape business practices are aware of and observe the State’s human rights obligations when fulfilling their respective mandates, including by providing them with relevant information, training and support.” As far as possible and taking account of relevant and applicable legal and regulatory specificities, there is also a need for consistency in the use of terms that are part of HRDD. Examples include the definition of human rights, the definition of human rights abuse(s), the identification of reliable sources of human rights data, the elaboration of effective policies and the development of tools, processes and methodologies for the identification, assessment, mitigation and remediation of adverse impacts.
HRDD is a tool designed to prevent harm and not serve as a panacea for all human rights challenges. Nevertheless, it is an example of a transversal concept and legal tool that could itself be used to help promote legal and policy coherence, including as part of efforts to create a (more) level playing field for sustainable business.
Without overburdening HRDD beyond its intended use, HRDD could be used to advance that coherence by serving as an example of a concept that applies across a matrix of legal and policy contexts but remains consistent and comprehensive. In the EU context, efforts to promote coherence should build on existing standards, the wisdom of accumulated expertise, guidance and good practice, while recognising the specific requirements of EU and Member State law. This can be done by encouraging cooperation and inter-institutional dialogue between legal experts to foster the consistent use of terms, avoid duplication or contradiction, promote mutual reinforcement of core tenets and by deploying HRDD to promotes legal and policy coherence with a view to enhancing human rights accountability.
The views expressed in this note are those of the author and should not be attributed to the EU FRA or any other entity with which she is affiliated.
Siobhán McInerney-Lankford is a human rights lawyer with expertise in EU and international human rights law. She is Head of Unit at the EU Fundamental Rights Agency (FRA), leading a 25-member team working on research and policy and advising EU institutions and Member States to promote rights-compliant legal and policy responses. From 2002-2023 she worked for the World Bank Legal Department, serving in both operational and advisory capacities, including as legal advisor to the WB Human Rights Trust Fund. Prior to that she worked in private practice in Washington, D.C.
Siobhán has served as adjunct professor at American University Washington College of Law and lectured at EPLO, EIUC, the Fletcher School, Harvard and the UN Summer Academy. She is currently an external practitioner for the MSc in International Human Rights Law at the Faculty of Law at Oxford. She is the author of over fifty articles and book chapters and co-editor of Research Methods in Human Rights (Edward Elgar, 2017) and The Roles of International Law in Sustainable Development (OUP, 2023).
Siobhán holds an LL.B. from Trinity College, Dublin, (First Class Honors), an LL.M. from Harvard Law School, and a B.C.L. and D.Phil. (EU human rights law) both from Oxford. She is admitted to practice law in Rhode Island and the District of Columbia.
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