Hardening Soft Law: The Implementation of Human Rights Due Diligence Requirements in Domestic Legislation

Forthcoming in M. Buscemi, N. Lazzerini and L. Magi (eds), Legal Sources in Business and Human Rights - Evolving Dynamics in International and European Law (Brill, 2020)

25 Pages Posted: 4 Mar 2020 Last revised: 6 Mar 2020

See all articles by Chiara Macchi

Chiara Macchi

Wageningen University and Research

Claire Bright

CEDIS - Nova School of Law; The British Institute of International and Comparative Law (BIICL)

Date Written: October 22, 2019

Abstract

Although the UN Guiding Principles on Business and Human Rights (UNGPs) are a soft law instrument which does not create any legally binding obligations, they nevertheless constitute the first authoritative global standard on business and human rights and have spurred a number of domestic-level legislative developments that seek to implement the UNGPs and translate the human rights due diligence (HRDD) requirements into hard law, through a process of progressive ‘hardening’ of the UNGPs.

Indeed, since the adoption of the UNGPs in 2011, a wide spectrum of domestic-level measures on HRDD have bloomed in numerous jurisdictions throughout the world. Reporting regulations such as the UK and Australian Modern Slavery Acts focus on only one part, albeit an essential one, of the HRDD process which is the communication element. Other domestic-level measures, such as the Dutch Child Labour Due Diligence Law, go beyond mere mandatory reporting by requiring companies to actually undertake HRDD, whilst remaining issue-specific. Some go still further, such as the French law on the duty of vigilance, the Swiss Initiative on Responsible Business, and the German draft law on due diligence in supply chains, by aiming to provide an overarching mandatory due diligence framework, with penalties and a civil liability regime attached to it. This Chapter will provide an in-depth analysis of these legal developments.

Keywords: Business and Human Rights; UN Guiding Principles on Business and Human Rights; Corporate Responsibility; Mandatory Due Diligence; Reporting; Dévoir de Vigilance; Soft Law

Suggested Citation

Macchi, Chiara and Bright, Claire, Hardening Soft Law: The Implementation of Human Rights Due Diligence Requirements in Domestic Legislation (October 22, 2019). Forthcoming in M. Buscemi, N. Lazzerini and L. Magi (eds), Legal Sources in Business and Human Rights - Evolving Dynamics in International and European Law (Brill, 2020) , Available at SSRN: https://ssrn.com/abstract=3524488 or http://dx.doi.org/10.2139/ssrn.3524488

Chiara Macchi

Wageningen University and Research ( email )

Hollandseweg 1
Wageningen, 6706 KN
Netherlands

HOME PAGE: http://https://www.wur.nl/en/project/Business-Human-Rights-in-European-Union-policies.htm

Claire Bright (Contact Author)

CEDIS - Nova School of Law ( email )

Portugal

The British Institute of International and Comparative Law (BIICL) ( email )

Charles Clore House
17 Russell Square
London WC1B 5JP
United Kingdom

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