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

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