Is human rights due diligence about process, or about outcomes?

Week of 6 September 2021

Is human rights due diligence about process, or about outcomes?

Our key takeaway: As we seek to design effective due diligence laws, we can’t lose sight of what human rights due diligence is intended to achieve: improved outcomes for people in practice.

As discussions regarding how to legislate human rights due diligence continue in the EU, Shift’s Rachel Davis published Viewpoint ‘Legislating for Human Rights Due Diligence: How Outcomes for People Connect to the Standard of Conduct’:

    • Human rights due diligence processes versus outcomes: The viewpoint highlights the ongoing point of contention regarding “the relationship between requiring companies to carry out human rights due diligence (HRDD) processes and the outcome of those efforts in human rights terms.” The current debate has become a binary one. On one side of the aisle, stakeholders are asserting that HRDD is an ‘obligation of means’ (i.e., “it is the quality of the process that matters” and the “results are therefore never relevant to an assessment of the quality of a company’s due diligence”). On the other side, stakeholders are asserting that HRDD is an ‘obligation of result’ (i.e., what matters is “whether or not you achieve a particular outcome” and “results should be definitive in such assessments.”) Shift argues that this binary debate “risks oversimplifying the relationship between process and outcomes in assessing the quality of a company’s HRDD.”
    • “HRDD is not just a set of processes disconnected from outcomes”: Shift reiterates that “[t]he responsibility to respect human rights is a standard of conduct – a level of behavior that we expect companies to meet, reasonably adapted to the specific human rights risks connected to their operations and value chain relationships. The intent of this standard is to prevent and address harms to people; due diligence is the means through which the UNGPs expect companies to achieve that objective”. In short, “HRDD aims to avoid specific harms and should be appropriately adapted to that task. It may not always succeed in doing so …, but that is its objective. It follows that the outcomes of due diligence will always be a relevant factor in assessing the reasonableness or adequacy of due diligence in any particular case.” Any legal definition of a new corporate duty should make this connection between HRDD, respect for human rights, and outcomes for people clear. “[D]ue diligence must manifestly aim at achieving the outcome of no harms; however, the occurrence of a harm is not in itself sufficient evidence that the due diligence was inadequate.”
    • Outcomes of HRDD are relevant to assessing the reasonableness of a company’s efforts: First, with regard to outcomes in a specific case, this entails “considering both the objective of the standard and how a person seeks to meet it in practice”. Shift illustrates this with the example of assessing whether someone drove safely: we’d look at both how they drove (e.g. checking mirrors, stopping at red lights etc.) and the outcomes of their driving (e.g. did they have any accidents, did they break speed limits). Second, with regard to outcomes over time, Shift underscores the evolving nature of due diligence over time. “[W]hat is considered safe driving today will look different as our understanding of what is more or less effective in preventing road accidents also evolves.” Hence the importance of tracking the effectiveness of HRDD and gathering feedback from affected stakeholders in the process. The focus of this debate should therefore shift to “explor[ing] the various ways in which the outcomes of due diligence will be relevant to assessing its reasonableness in practice and how this can be appropriately reflected in legislation.”

Rachel Davis, Legislating for Human Rights Due Diligence: How Outcomes for People Connect to the Standard of Conduct’ (Shift, August 2021)