"Fulfilling the State Duty to Protect: A Statement on the Role of Mandatory Measures in a “Smart Mix”, 20 Feb 2019

There is a growing number of national and international debates around mandatory measures to ensure business respect for human rights, and specifically a) a binding international instrument on business and human rights and b) national legislation on mandatory human rights due diligence. In these debates, the UN Guiding Principles' expectation of a "smart mix" of implementation measures is often cited. As a contribution to these discussions, Shift has developed the following statement on the role of mandatory measures in a "smart mix"...

A truly "smart mix" means looking at all four aspects (national, international, mandatory and voluntary), not just the one or two that are most convenient or already in place. It follows, therefore, that the state duty to protect necessarily involves legislative and regulatory measures at the national level, and the supportive infrastructure (such as enforcement, incentives and guidance) needed to make them meaningful in practice. Without these, the UNGPs will never fulfill their true potential. The UNGPs also clearly contemplate mandatory international measures as a natural part of this "smart mix"...While the UNGPs do not demand that states adopt legislation requiring companies to carry out mandatory human rights due diligence (HRDD), clearly such legislation is entirely in line with the UNGPs.

Practical reasons to consider mandatory human rights due diligence can include:

• The powerful effect it can have in driving top-level attention to human rights in companies, as well as engaging functions across the business;

• Leveling the playing field across companies and sectors, including through engagement with business partners in a company’s value chain;

• Obliging companies to consider the interests of stakeholders other than shareholders;

• Incentivizing collaborative approaches to address systemic human rights risks; and

• Enabling (where civil liability is included) a clear cause of action for individuals who are harmed to pursue remedy.