Week of 11 October 2021
Hearing the human: direct engagement with rights-holders is the missing puzzle piece in HREDD legislation
Our key takeaway: Creating space in human rights and environmental due diligence (HREDD) legislation for the voices of those most impacted by company practices on the ground is not a “nice-to-have” but a “must-do.” Human rights defenders and rights-holders have the information companies need to conduct meaningful due diligence, however this must not come at the expense of their rights and security.
Six NGOs, representing the perspectives of over 60 representatives of civil society and communities, released a briefing paper with analysis and recommendations for the forthcoming EU mandatory human rights and environmental due diligence (HREDD) legislation as part of the EU Sustainable Corporate Governance Initiative:
- “Genuine due diligence depends on meaningful stakeholder engagement”: Rights-holders and human rights defenders (HRDs) are crucial to meaningful HREDD, and legislation must actively create space for them to participate in due diligence processes. “By recognising the value of early and constructive engagement with rights-holders and HRDs as a powerful tool to identify actual and potential adverse impacts, EU companies can avoid significant problems and costs further down the line.” Engaging with the people most at-risk and their proxies is “critical to moving due diligence beyond a top-down, ‘check-box’ exercise defined by company views, towards a process which truly responds to rights-holders’ concerns.” This is all the more important when considering that HRDs are at high risk of retaliatory attacks by companies and governments.
- “An ‘open-door policy’ for HRDS and rights-holders”: The paper highlights two necessary conditions within the legislation for stakeholder engagement to be truly meaningful and spur action on the part of companies. Engagement must: “(a) inform all stages of ongoing due diligence throughout operations, value chains, and project life-cycles, including risk identification and analysis, as well as measures to prevent, mitigate and cease adverse impacts and remediate affected people, and (b) be safe, so that HRDs and rights-holders can speak out about adverse corporate impacts without suffering retaliation.” To that end, the paper proposes that the directive “include language on and prohibit reprisals and require companies to conduct meaningful and safe stakeholder engagement across their operations and value chains” as well as “effectively engage with business relationships to ensure zero-tolerance for attacks against HRDs,” among other steps.
- A range of recommendations for policymakers: For one, the legislation should include a legal duty for companies to engage meaningfully with stakeholders. To facilitate this, there should be protections in place for HRDs and rights-holders to safely engage with companies by putting a “positive obligation on EU companies to prevent retaliation against HRDs across their operations and value chains.” In addition, the NGOs call for accessible channels to accountability mechanisms, for example by ensuring access to remedy for victims of retaliation and by including “a robust civil liability mechanism to ensure affected people outside the EU can bring cases before European courts, under EU law, against EU companies involved in human rights and environmental harms.” Companies should also be required to conduct HREDD throughout their entire value chains, recognising that most retaliation against HRDs, along with other human rights and environmental abuses, occurs in lower tiers of the supply chain.
For more, see Business & Human Rights Resource Centre, Front Line Defenders, Indigenous Peoples Rights International (IPRI), ProDESC, Natural Justice and the Community Empowerment and Social Justice Network (CEMSOJ), Hearing the Human: Ensuring Due Diligence Legislation Effectively Amplifies the Voices of Those Affected by Irresponsible Business (October 2021)