Corporate human rights due diligence and civil liability: steps forward towards effective protection?

This article discusses recent developments in International and European law in terms of progressive human rights protections against corporate abuses. Reference is made, respectively, to a treaty under negotiation, namely the Legally Binding Instrument to Regulate, in International Human Rights Law, the Activities of Transnational Corporations and Other Business Enterprises (‘Draft Treaty’) and to the EU Commission Proposal for a Directive on Corporate Sustainability Due Diligence (‘Proposed Directive). A comparative analysis of these instruments shows a common interest in defining the obligations of States and corporations relating to human rights protection in the course of business activities, including corporate due diligence. States’ obligations to provide a clear legal framework against corporate human rights violations are better specified, and special regard is given to business activities of a transnational character. This might give ground for the attribution of international responsibility to States that, by breaching their obligations under these instruments, fail to protect human rights against corporate abuses. Moreover, the voluntary approach so far followed only by a few corporations may be superseded by compulsory due diligence standards. This would make it easier to establish corporate liability for human rights violations and to provide compensatory redress. However, the approach of the two instruments to cross-border disputes deserves further reflection, in particular concerning the harmonization of private international law rules on adjudicative jurisdiction and applicable law. Provisions in both respects are included only in the Draft Treaty. These rules are unusual and potentially thorny in a human rights instrument, despite their potential to maximize the possibility of a favorable outcome for victims. The Proposed Directive, on the contrary, does not address the issue of jurisdiction over cross-border litigations but does include a safeguard clause concerning the compulsory overriding application of the civil liability provisions included thereto in cases where the law applicable to the claim is not the law of a Member State. Both instruments certainly mark a step forward towards effective preventative and remedial mechanisms for corporate human rights abuses, but more work is still needed to ensure there are remedies in cases of cross-border disputes to grant victims the highest possible standard of protection.