The Rise of Human Rights Due Diligence (Part II): The Pluralist Struggle to Shape the Practical Meaning of the Concept - By Shamistha Selvaratnam

Editor’s note: Shamistha Selvaratnam is a LLM Candidate of the Advanced Masters of European and International Human Rights Law at Leiden University in the Netherlands. Prior to commencing the LLM, she worked as a business and human rights solicitor in Australia where she specialised in promoting business respect for human rights through engagement with policy, law and practice.


The UNGPs second pillar, the corporate respect for human rights, is built around the concept of human rights due diligence (HRDD). Since 2011, following the resounding endorsement of the UNGPs by the Human Rights Council, it has become clear that HRDD constitutes a complex ecology of diverse practices tailored to the specific context of a particular business. The UNGPs are not legally binding and there is no institutional mechanism in place to control how they are to be translated into practice by the companies that purport to endorse them. Nonetheless, numerous companies and regulatory schemes have embraced the idea of HRDD (such as the OECD Guidelines, the French law on the devoir de vigilance, the UK and Australian modern slavery laws and the Dutch Agreement on Sustainable Garment and Textile). 

The operationalisation of HRDD has been shaped over the past 8.5 years by a variety of actors, including international organisations, consultancies and audit firms, as well as non-governmental organisations. These actors have conducted research and developed various methodologies, instruments and tools to define what HRDD is and what it entails in order to assist or influence businesses in its operationalisation. The interpretation of the requirements imposed by HRDD process outlined in the UNGPs is open to a variety of potentially contradictory interpretations. This pluralism is well illustrated by the diversity of actors involved in an ongoing struggle to define its scope and implications.

This second blog of a series of articles dedicated to HRDD looks at it through the lens of the most influential players shaping HRDD in practice by examining their various perspectives and contributions to the concept. Case studies will then be undertaken to look at how HRDD has materialised in practice in specific companies. To wrap up the series, a final piece will reflect on the effectiveness of the turn to HRDD to strengthen respect for human rights by businesses.


The UN’s Authoritative Contributions to the Meaning of HRDD

The OHCHR’s Interpretive Guide to the HRDD

Acknowledging that the immediate challenge of the UNGPs is effective implementation, the Office of the High Commissioner of Human Rights (OHCHR) released The Corporate Responsibility to Respect Human Rights: An Interpretive Guide (OHCHR Guide). It seeks to provide additional background explanation to the corporate responsibility to respect human rights in order to support a full understanding of their meaning and intent. It is thereby clear that the OHCHR recognises that the UNGPs require clarification in order to be properly implemented by business. While the OHCHR Guide states that it does not intend to change or add to the UNGPs, or to provide operational guidance on implementing the respect for human rights by business in practice, it does in fact contribute to the practical operation and reach of HRDD. It attempts to narrow down the meaning of open-ended aspects of the UNGPs and provide context and explanations of concepts and ideas referred to in the UNGPs that require further clarification.

The OHCHR Guide takes the approach of answering a series of questions that are likely to be asked by a range of stakeholders, including business, on a principle-by-principle basis. It provides guidance on the concept of HRDD in and of itself, as well as on each step of the HRDD process. Therefore, it seeks to answer the questions of how, when, what with respect to HRDD and the process it entails, which is missing in the UNGPs themselves, in an attempt to guide business in implementing corporate respect for human rights. Notably, the OHCHR Guide defines HRDD in the context of the UNGPs as ‘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’. Prior to this, the meaning of the concept had never been clearly set out. Importantly, it discusses why HRDD actually matters, namely, to assist businesses to identify the human rights risks specific to their business at a point in time and the actions they need to take to prevent and mitigate them.

The work of the UN Working Group on the issue of human rights and transnational corporations and other business enterprises

The UN Working Group on the issue of human rights and transnational corporations and other business enterprises (Working Group) has contributed to the practice of HRDD by examining the challenges and success stories of businesses in order to ‘contribute to faster progress’ in the realisation of HRDD. The Working Group was established shortly after the UNGPs were endorsed. It has a broad mandate, which includes promoting the effective and comprehensive dissemination and implementation of the UNGPs; identifying, exchanging and promoting good practices and lessons learned on the implementation of the UNGPs; and providing support for efforts to promote capacity-building and the use of the UNGPs.

Last year in its report to the General Assembly on the ‘emerging practice and innovations of corporate human rights due diligence across sectors’, the Working Group acknowledged that there are gaps and challenges in current business HRDD practice. In doing so, the Working Group has entered into the interpretative fray and clearly aimed at influencing the scope and depth of HRDD. For example, the Working Group argues that businesses don’t properly understand HRDD in many cases resulting in issues such as the misconstruction of risk and human rights impact assessments becoming a tick box exercise. Further, it identifies that there is generally weak performance with respect to the ‘taking action’ and ‘tracking performance’ aspects of HRDD, and considers that businesses are failing to make the requisite link between HRDD and the remediation of actual human rights impacts.

While the Working Group has not provided a tool per se to assist business to implement HRDD, it usefully compiled a set of cross-cutting aspects of good practice demonstrated by business that can be applied by all businesses regardless of their specific context. Through setting out what it deems to be ‘good practice’ with respect to HRDD, the Working Group has attempted to shape expectations of business under HRDD. As a result, businesses can learn from the actions taken by other businesses that are regarded as successfully implementing aspects of the HRDD concept and its process.

The Working Group emphasises the importance of stakeholder engagement with critical voices, those directly affected by human rights impacts and NGOs during all stages of HRDD and providing greater transparency and meaningful reporting. The Working Group also highlights the importance of extending HRDD beyond tier one suppliers to all suppliers in a business’ value chain and building and exercising leverage by conveying that the business will prevent and address human rights impacts across business relationships wherever they arise. Further, the Working Group encourages businesses to address systemic human rights issues by building collective leverage to address the root causes of those issues.


The OECD’s Contribution

The OECD is a powerful norm-entrepreneur in the struggle to define HRDD. It has played a very productive role in it, creating a number of guidance documents regarding various aspects of the concept. The OECD has incorporated HRDD into the OECD Guidelines for Multinational Enterprises, one of its greatest contributions has been to devise sectoral solutions to issues that arise when businesses conduct HRDD in particular industries.

The 2011 revision of the OECD Guidelines resulted in ‘risk-based due diligence’ being incorporated as a key tool for identifying, preventing and mitigating actual and potential adverse impacts in the areas covered by the Guidelines. The provisions of the OECD Guidelines that address HRDD align with the process set out in the UNGPs. It is significant that HRDD has been included in the OECD Guidelines, as all governments adhering to them are required to establish a National Contact Point, which is, inter alia, a grievance mechanism that resolves matters relating to the non-observance of the OECD Guidelines. As such, it is likely that a sort of non-binding ‘jurisprudence’ will emerge from the workings of National Contact Points on what HRDD entails from the perspective of the OECD and the related expectations on businesses.

Last year the OECD released Due Diligence Guidance for Responsible Business Conduct (OECD Guidance). The OECD Guidance provides practical support to enterprises on the implementation of the OECD Guidelines. The Guidance provides a practical tool for business (rather than theoretical one) focusing on the concrete actions for business to take to align with international HRDD standards (including the UNGPs and OECD Guidelines) and operationalise HRDD. Illustrative examples are provided on how each of the steps in the HRDD process can be approached and carried out.

The OECD has also published a number of other due diligence guidance documents targeting HRDD in the context of particular sectors and operational contexts. Some examples include the OECD Due Diligence Guidance for Responsible Supply Chains in the Garment and Footwear Sector, the OECD Due Diligence Guidance for Responsible Supply Chains of Minerals from Conflict-Affected and High-Risk Areas and the OECD Due Diligence Guidance for Meaningful Stakeholder Engagement in the Extractive Sector. The purpose of these materials is to provide businesses with the tools to implement the due diligence recommendations in the Guidelines in their particular sector, having regard to the sector-specific complexities and challenges that may arise during that process. Therefore, the OECD acknowledges that HRDD is not a straightforward process and different intricacies can arise in implementing the concept based on the industry in which a particular business operates, requiring the process to be tailored to each business.


The role of other actors in the struggle to define HRDD

Shift and Ruggie’s Legacy

Shift, a global consultancy organisation, was created by those who worked closely with Ruggie during his mandate as Special Representative on the issue of human rights and transnational corporations and other business enterprises to establish the UNGPs. The founders of Shift recognised that into order to put the UNGPs into practice, governments, businesses, investors and NGOs needed to take action and a new paradigm needed to be created so that business could be done upon the three pillars of the UNGPs. Shift places a great focus on assisting companies on putting the UNGPs into practice by assisting them to report on their business and human rights practices. It has zeroed in on reporting the UNGPs because it believes that it can be ‘a very powerful driver of improved management’.

Shift together with Mazars, an audit, accounting and consulting group, created the UN Guiding Principles Reporting Framework (Reporting Framework) as a tool to assist businesses to report on human rights issues so that they can align themselves with the UNGP’s responsibility to respect human rights. The Reporting Framework seeks fill the gap between principle and practice through providing a:

global and widely accepted process for companies to demonstrate whether their policies and processes are indeed aligned with the UN Guiding Principles and therefore capable of meeting their responsibility to respect human rights.

The implementation guidance aspect of the Reporting Framework provides a series of questions for companies to self-evaluate their actions in order to ‘know and show’ that it is meeting its responsibility to respect human rights in practice. It provides guidance on how to respond to the questions with relevant and meaningful information. The disclosures of 147 companies under Reporting Framework have been recorded in a database since it was published in 2015, including the likes of Rio Tinto, Unilever, Google and Apple. However, the tool has not necessarily been used by businesses in consecutive years. For example, Rio Tinto has not used the tool since 2016 and Unilever since 2015. Consistency in use of any tool is critical to being able to track a company’s performance in implementing the UNGPs over time. Using the recorded information, Shift has identified various trends and insights on business disclosure.

Shift has also partnered with the Global Compact Network Netherlands and Oxfam to release a guidance tool for companies named ‘Doing business with respect for human rights’ (Guide). The Guide is intended to equip businesses with practical advice and real-life examples that assist with translating the principles set out in the UNGPs into concrete action. With respect each of the core elements of the UNGPs, a series of guidance points are provided so these concepts can be put into practice, along with examples so that companies can learn from practice. Common pitfalls generally experienced by companies are also outlined to assist businesses from falling into these ‘traps’. Interestingly, the Guide was the result of workshops held in Indonesia, Mexico, South Africa and Turkey which brought together civil society stakeholders and businesses for ‘frank sharing of perspectives, challenges and ways forward on ensuring greater business respect for human rights’. As a result, the Guide draws upon these different perspectives and draws on learnings from various practical experiences.

Shift has also provided practical strategies for business in conducting HRDD in high risk circumstances (Shift Guidance). In doing so, it has recognised that certain businesses will face high risks as a result of factors in the broader operational context (e.g. corruption), business relationships, business activities and the presence of vulnerable groups. The Shift Guidance provides a tool to identify a business’ highest risks (i.e. considering the relative weight of risk factors, the presence of meta indicators and the capacity of the business’ management systems), setting out a series of questions for businesses to ask themselves. It also emphasises the importance of engaging both internal and external stakeholders.

Multistakeholder Organisations and HRDD: The Ethical Trading Initiative

The Ethical Trading Initiative (ETI), an alliance of companies, trade unions and NGOs, has also made its own contribution to the concept of HRDD. ETI focuses on promoting respect for workers’ rights globally. ETI has developed its own HRDD Framework (ETI Framework) to help companies meet the corporate responsibility to protect in the labour rights context by preventing and managing labour rights risks that arise in supply chains. The ETI Framework aligns with the ETI’s Base Code, which is a set of internationally recognised labour standards derived from the ILO Conventions and includes, for example, ensuring living wages are paid and working hours are not excessive. It also focuses on workers with the greatest risk of human rights abuses such as children, women and migrant workers.

The focus of the ETI Framework on workers’ rights is clearly evidenced through the stated action items that companies should take in order to satisfy each step. For example, with respect to assessing actual and potential human rights risks, businesses should identify risks to workers by sector, nature of work, type of worker, employment relationships and labour market dynamics and assess workers’ ability to access rights to freedom of association and collective bargaining. While it is clear that the ETI Framework is based on the HRDD process articulated in the UNGPs, it also draws from the OECD due diligence tools and the Reporting Framework discussed above. Accordingly, it is aimed at complementing these frameworks, rather than replacing them.

ETI Norway has also released  ‘A Guide to Human Rights Due Diligence in Global Supply Chains’ (ETI Guide) to assist companies to operationalise HRDD in order to improve working conditions in supply chains. While the ETI Guide is intended to strengthen the role of Norwegian companies in achieving sustainable business practice, it can be applied to companies outside of Norway. The HRDD process outlined in the ETI Guide focuses on how to prevent, mitigate and remedy negative impacts on people working in supply chains, and the local communities in which they live and work, through adopting a risk-based approach. It acknowledges that HRDD needs to account for all players throughout all stages of a supply chain. Success factors for each of these steps are provided to guide businesses on what satisfaction of each step looks like, along with illustrative case studies of Norwegian companies that have successfully carried out HRDD.



HRDD is complex and its practice is being shaped by actors through the development of a variety of overlapping but multifarious administrative tools, reports, guidance documents and guidelines. What is clear is that there are a multiplicity of players weighing in on what exactly HRDD is, what it entails and how it should be implemented and practiced by business. Each of these players has different legitimacies and interests that have influenced their contribution to HRDD – for example the ETI’s contribution to HRDD is mainly focused on workers rights in the labour context.

It is clear that the UNGPs marked the end of the beginning to stopping corporate abuse of human rights. With respect to HRDD, the definition of its practical scope is still subject to ongoing interpretative struggle, with the resulting consequence being that there is a degree of uncertainty as to how businesses should operationalise HRDD. Accordingly, its meaning and impact can be properly understood only in the context of its concrete use, requiring specific case studies of business practice to be examined. The next blogs in this series will carefully examine the practices of businesses that have implemented HRDD in order to understand what HRDD actually does in practice.

Comments are closed