Does the UK have an international duty to adopt a mandatory due diligence obligation law on business and human rights?

Dr. Dalia Palombo, Senior Research Fellow at the Institute for Business Ethics, University of St.Gallen, Switzerland

In recent years, a number of NGOs and civil society organisations, including the CORE Coalition, have called for the UK to adopt a mandatory due diligence obligation law requiring parent companies incorporated in the UK to oversee the activities of their supply chains worldwide.

This call has become increasingly compelling after the Joint Committee on Human Rights of the UK Parliament recommended the adoption of such a law, France [1]and the Netherlands adopted two different mandatory due diligence obligation laws in 2017 and 2019, and Switzerland will have a referendum on a similar law in autumn.

No doubt, from the perspective of business and human rights advocates, it would be great if the UK adopted a mandatory due diligence obligation law on its goodwill, but a fundamental question to ask is whether the UK has an actual legal obligation to adopt such a law.

My book, Business and Human Rights: The Obligations of the European Home States answers this pressing question, among others, by referring to the jurisprudence of the European Court of Human Rights (ECtHR), the Inter-American Court of Human Rights (IACtHR) and the UN Treaty Bodies.

The Formation of an International Legal Obligation

First, for decades, the UN Treaty Bodies have recognised the obligation of home states to provide victims with effective remedies against holding companies incorporated within their territories for extraterritorial human rights abuses committed in host states.[2] On one occasion, the Committee on Economic Social and Cultural Rights even specifically urged France to adopt its current mandatory due diligence obligation law, which was at the time under consideration by the French Parliament.[3] While UN human rights treaties bind states, including the UK, their interpretation by the UN Treaty Bodies provides encouragement and assistance to states on the implementation of the UN treaties.

Second, the IACtHR delivered an Advisory Opinion on the Environment and Human Rights recognising the obligation for states to ensure that foreign victims have access to remedies against private actors, such as companies, incorporated in their territories but abusing human rights extraterritorially.[4] The IACtHR based its analysis on a variety of elements including the decisions of UN Treaty Bodies. This is the first example of a human rights court recognising an obligation of states vis-à-vis enterprises abusing human rights extraterritorially. However, the UK is not a party to the American Convention on Human Rights.

Third, although the ECtHR has not yet decided a case on the obligations of European home states with respect to the extraterritorial human rights abuses committed by multinational enterprises headquartered in their territories, its jurisprudence is already enshrining some fundamental principles that could be applied in prospective future cases.

The ECtHR has recognised in multiple cases that states have a positive obligation to guarantee victims with a right to effective remedy against private industries incorporated in Europe.[5] In addition, it has also recognised that states must ensure effective investigation of transnational human rights abuses, such as cases of human trafficking, as long as at least a part of the chain abusing human rights is located in their territory.[6]

Therefore, an attentive analysis of the case law of the ECtHR on positive obligations and extraterritoriality together appears to show that the jurisprudence of the ECtHR is not that far away from those of the other human rights adjudicatory bodies. If, following the IACtHR and the UN Treaty Bodies, the ECtHR will deliver an explicit decision about the existence of an obligation for states to provide effective remedies to foreign victims against multinationals headquartered in their territories, such an obligation would be binding on the UK.

How could the UK fulfil this obligation?

One avenue to fulfil this obligation would be for states to adopt mandatory due diligence obligation laws that would ensure effective remedies to the victims of human rights abuses by multinational enterprises.

Another possibility would be to develop such a remedy by extending the application of current laws to extraterritorial cases. In this sense, the recent UK Supreme Court case Vedanta[7] has opened the door to the use of tort law in transnational cases against multinationals incorporated in the UK. As I write, the UK Supreme Court is deciding a second significant case in this respect (Shell).[8] Although this jurisprudential trend is positive for victims, it shall be emphasised that these are jurisdictional cases that are still far from providing effective remedies to the victims. In this sense, a mandatory due diligence obligation law could be of help to domestic courts in terms of directing their application of tort law to such complex transnational cases.

Therefore, although the UK is under no obligation to adopt a mandatory due diligence obligation law, it arguably has the obligation to provide victims of human rights abuses with effective remedies against multinationals headquartered in the UK. An avenue to meet such an obligation would be to adopt a mandatory due diligence obligation law, provided that such a law would guarantee a meaningful remedy to victims detrimentally affected by UK multinationals.

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[1] Loi 2017-399 du 27 mars 2017 relative au devoir de vigilance des sociétés mères et des entreprises donneuses d’ordre 2017 (JORF).

[2] See CERD, ‘Consideration of Reports Submitted by States Parties under Article 9 of the Convention Concluding Observations of the Committee on the Elimination of Racial Discrimination Canada’ (2012) CO 19–20; CRC, ‘General Comment No. 16 (2013) on State Obligations Regarding the Impact of the Business Sector on Children’s Rights’ (2013) GC 16; CRC, ‘Concluding Observations on the Combined Second to Fourth Periodic Reports of Switzerland’ (2015) CO 2–4; HRC, ‘Concluding Observations on the Sixth Periodic Report of Germany, Adopted by the Committee at Its 106th Session’ (2012) CO 6; CESCR, ‘General Comment No. 24 on State Obligations under the International Covenant on Economic, Social and Cultural Rights in the Context of Business Activities’ (2017) General Comment 24.

[3] CESCR, ‘Concluding Observations on the Fourth Periodic Report of France’ (2016) CO 4.

[4] Advisory Opinion on the Environment and Human Rights [2017] IACHR OC-23/17.

[5] Fadeyeva v Russia [2005] ECHR 55723/00; Moreno Gomez v Spain [2005] ECHR 4143/02; Lopez Ostra v Spain [1994] ECHR 16798/90; Cordella and others v Italy [2019] ECHR 54414/13 and 54264/15.

[6] Rantsev v Cyprus and Russia [2010] ECHR 25965/04; Markovic and others v Italy [2006] ECHR 1398/03.

[7] Vedanta Resources PLC and another (Appellants) v Lungowe and others (Respondents) [2019] UKSC 20.

[8] Okpabi & Ors v Royal Dutch Shell Plc & Anor (Rev 1) [2018] EWCA Civ 191 (EWCA (Civ)).