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.
Human rights due diligence (HRDD) has
emerged as a dominant paradigm for doing business with respect for human
rights. It is a central concept to the UNGPs and describes what ‘steps a
company must take to become aware of, prevent and address adverse human rights
impacts’ in order to discharge the responsibility to respect.
The case studies examining Adidas’
HRDD practices (the Case Studies) have demonstrated how businesses are working
with the concept of HRDD and translating it into practice. They provide an opportunity
to consider the adaptable nature of HRDD and whether it has the potential to
transform business internal frameworks in order to generate greater corporate
respect for human rights. This will be reflected on in this final blog of our
series of articles dedicated to HRDD. It will also reflect on the role that
hard law initiatives play in incentivising substantive human rights compliance
by business (in addition to soft law initiatives such as the UNGPs).
The Adaptable Nature of HRDD
There is no ‘one-size-fits-all’ approach
that can be taken by businesses when implementing HRDD. Although the elements
and parameters of HRDD are defined in the UNGPs (discussed in detail in a previous
blog in this series), it is, by its very
nature, an open-ended concept that has been ‘articulated at a certain level of
abstraction’. Indeed, this level of abstraction was arguably intentional given
the use of the term ‘due’ in HRDD, which ‘implies variation of effort and resources necessary to
address effectively adverse impacts in a particular context’.
flexibility built into the concept of HRDD acknowledges
that there are more than ‘80,000 multinational corporations, ten times as many
subsidiaries and countless national firms’ globally that differ in many
Accordingly, the shape of HRDD within one business cannot be the same as that
of another business – it should be ‘determined by the context in which a company is
operating, its activities, and the relationships associated with those
As Ruggie acknowledged
in 2010, his aim was to ‘provide companies with universally applicable guiding
principles for … conducting due diligence’, rather than prescriptive guidance.
Therefore, the ‘complexity of tools and the magnitude of processes’ employed by
businesses will vary depending on the circumstances. As such, businesses can
exercise a great deal of discretion as to how to translate HRDD into practice.
However, this adaptable nature of HRDD has
been critiqued for lacking clarity, embodying a ‘high degree of fragility and
flexibility’ and for containing an ‘inbuilt looseness’.
These complexities arise due to the absence of ‘sufficient specificity of
Bijlmakers argues that the ‘ambiguity and openness’ of HRDD can ‘lead to
uncertainty about what conduct is required from companies for the effective implementation
of their responsibilities’.
This can result in a lack of compliance by businesses or differing levels of
compliance, which ultimately means that HRDD ‘may or may not achieve the
desired outcome – i.e. non-violation of human rights – in all cases’.
Indeed from the Case Studies it is clear that despite the extensive efforts
made by Adidas and Unilever to put HRDD into practice, there are still gaps
between the paper-based processes and practices of both businesses, e.g. there
are human rights abuses present within their supply chains that are not being
identified by their current HRDD practices and therefore not being addressed.
Mares also argues that the looseness surrounding HRDD as a concept can also
result in ineffective implementation, whereby businesses take action that is
‘largely symbolic, generates limited improvements, and fails to address
As a result, businesses are not addressing the root causes of human rights
issues within their business, but rather ‘applying bandaids to symptoms’. 
The flexibility of HRDD as a concept also allows businesses to employ
various tools and processes in order to ‘create plausible deniability’, instead
of discovering and understanding issues within their supply chains and how they
should be managed. Through
conducting on the ground research at the local level, Bartley demonstrates that
businesses appear to be using these tools and processes in order to ‘collect
just enough information to produce assurances of due diligence’, allowing human
rights issues and impacts to be kept out of sight.
Accordingly, their is a risk that businesses take advantage of the open-ended
nature of HRDD by implementing HRDD processes as window-dressing to give the
impression that they are engaging with the human rights risks and impacts in
the context of their business, when in fact they are not.
However, despite these critiques the Case
Studies demonstrate that the adaptable nature of HRDD has proven to be transformative
on businesses. Embracing HRDD has led Adidas and Unilever to transform their
operations to fit the different phases of the HRDD process. In doing so, they
have avoided using a cookie-cutter approach that does not account for the
differences between the businesses and they way they operate.
The use of customised HRDD approaches is of
particular importance given that the salient human rights risks and impacts
identified by a business will always differ in some respects to those of
another business. With respect to Adidas and Unilever, despite having some
overlapping identified risks (e.g. discrimination, working hours, freedom of
association and fair wages), both businesses also focus on a number of specific
salient risks, which are determined using various factors including the
assessed risks of the countries in which they operate. On one hand, land rights
are a particular focus for Unilever given the negative impacts it can have on
individual’s and communities’ land tenure rights, particularly through its
suppliers. On the other hand, child labour is more of a salient risk for Adidas
given the pressure on brands in the apparel sector to produce garments at low
costs in a quick time frame. In light of this, the HRDD processes followed by each
business after identifying these risk areas are different such that the actions
taken to integrate and address risks and impacts are directly responsive to
Is HRDD Effective to Foster Corporate Respect of Human
Studies also demonstrate that HRDD is not solely a paper tiger. Businesses that
truly engage with the HRDD process can indeed transform internal processes, enhancing
corporate attention on human rights. Both Adidas and Unilever have not sought
to use HRDD as a buzzword with no institutional consequences. Instead they have
introduced concrete mechanisms aimed at preventing human rights impacts from
arising within their business context.
has HRDD had a transformative impact on Adidas and Unilever? As I have shown in
the Case Studies, it has provided a framework for embedding institutional and
regulatory changes geared towards the prevention of adverse human rights
impacts. On paper, they have translated the cycle of HRDD into a maze of internal
procedures involving different stages of their activities as well as different
corporate entities integrated in their supply chains. Moreover, they have built-up
enforcement mechanisms in an attempt to trigger change if a potential human
rights risk is identified. In short, the transformative impact of HRDD on the
structure and operations of the two corporations is clear, whether this impact
is effective to tackle human rights violations in their supply chains is
another matter. The Case Studies conducted cannot evidence effectiveness, as it
would require much more time-consuming and expensive on-field studies to
observe whether the compliance of, for example, the working conditions of
Adidas’ or Unilever’s suppliers with core labour rights improves thanks to
certain that neither Adidas nor Unilever have a perfect HRDD process in place –
gaps and blindspots will always exist which allow serious human rights issues
to continue to emerge in their supply chains. Nonetheless, as evidenced above, it
is also true that embracing HRDD had a transformative impact in the way these
businesses operate. Whether these transformations are correlated with a
decrease in human rights violations across their supply chains is a fundamental
question that cannot be answered by my research, even though it will be at the
centre of future assessments of the practical effects of HRDD on human rights
throughout supply chains.
The Catalyst Role
of Hard Law Initiatives
Soft law HRDD initiatives such as the UNGPs
and the OECD Guidelines have been primarily relied upon to date in order to
regulate corporate human rights behaviour. Over the past years, however, several
countries have either adopted or started to consider adopting legislation that
embeds HRDD into their legal framework. For example:
- The UK and Australia have both
adopted legislation requiring specific businesses to report on their HRDD
processes and efforts in their operations and supply chains in relation to
- The Netherlands has adopted
legislation that requires specific companies to undertake HRDD related to child
labour in their supply chains.
- France has taken a broader
approach, rather than focusing on thematic issues, and adopted legislation that
requires certain businesses to undertake HRDD to identify and prevent serious
violations of human rights and fundamental freedoms, health and safety as well
as the environment.
- Further, the Human Rights
Council’s Open-Ended Intergovernmental Working Group on Transnational
Corporations and Other Business Enterprises with Respect to Human Rights is in
the process of developing a binding business and human rights treaty. The
current draft of the treaty includes a HRDD article requiring state parties to
ensure that their domestic
legislation requires all businesses to which the treaty applies to undertake HRDD
throughout their business activities.
The rapid rise of such hard law initiatives
imposing HRDD across the board means that transformation observed in the
context of Unilever and Adidas will spread to many more businesses in the
coming years. The turn to binding HRDD might be a response to the lack of
willingness of businesses to embrace HRDD voluntarily. This is particularly the
case in light of the dire landscape highlighted by benchmarking initiatives. For
example, the results
of the Corporate Human Rights Benchmark demonstrates that 40% of the
companies ranked scored no points at all in relation to the systems they have
in place to ensure that due diligence processes are implemented.
that complements the business and human rights soft law already in existence might
create the ‘compliance pull’ that is needed to ensure that businesses undertake
HRDD by legally mandating that they engage in the process. Further, it can
clarify and create greater certainty as to the expectations on business with
respect to HRDD, as well as incentivise meaningful HRDD by imposing the risk of
civil liability onto businesses failing to conduct proper HRDD. The turn to
binding HRDD will necessarily have transformative effects on the way affected
businesses operate. It will trigger the emergence of a whole HRDD bureaucracy
involving rules, processes and institutions. Yet, whether it will lead to
greater respect for human rights remains to be seen in practice and depends on
the way HRDD will be implemented as well as on the intensity of control
exercised by national authorities.
series has delved into the operationalisation of HRDD from theory to practice
by business. Through the detailed examination of the HRDD practices of Adidas
and Unilever in their supply chains, it has demonstrated that HRDD can profoundly
change the internal operations of businesses embracing it.
fragility and flexibility of the concept that gives rise to uncertainty and
ambiguity as to how it should be complied with, businesses that choose to fully
engage with the process are transformed by it with a potential effect on their
human rights footprint. Truly implementing HRDD throughout
a business’ operations and supply chains has the potential to result in human
rights risks and impacts being better embedded within the business’ corporate
governance framework. This is because HRDD focuses on identifying and managing
these risks and impacts and to use those findings to inform business decisions,
such as whether to engage in business activities in a particular country or
whether to enter into contractual relations with a particular supplier. The
development and adoption of hard law imposing HRDD complementing existing soft
law initiatives contributes to the diffusion of HRDD into a greater number of businesses.
series paves the way for further research into whether the HRDD mechanisms
implemented by Adidas, Unilever and other businesses are truly effective to
protect human rights. On the ground research at a local level involving
engagement with the relevant business being assessed and its stakeholders is
crucial to determining the effectiveness of specific HRDD mechanisms in
practice. A broader examination of a greater number of businesses’ HRDD
practices will allow for conclusions to be drawn as to how businesses can effectively
conduct HRDD and whether there are particular practices and mechanisms that are
of the Special Representative of the Secretary-General on the issue of human
rights and transnational corporations and other business enterprises, John
Ruggie: Protect, Respect and Remedy: a Framework for Business and Human Rights
(7 April 2008), UN Doc. A/HRC/8/5,  [2008 Report].
 John Ruggie, The
Corporate Responsibility to Respect Human Rights (2010).
 Mares, ibid, p 6.