14 June 2022

Despite the many developments around due diligence, [...] consistently centering the perspectives of those who are meant to benefit most from the legislation – the rights-holders – has remained somewhat elusive. This post therefore explores how MHREDD-legislation and specifically the Proposal [European Commission proposal for EU-wide mandatory human rights due diligence] could more systematically center and prioritize rights-holders along with their perspectives and contributions, which would increase the effectiveness of due diligence efforts. In these reflections, the authors draw on experiences of the Fourth Pillar initiative, which for the better part of the past decade has explored how to better center communities and rights-holders in the field of business and human rights.

A regulatory scheme that centers communities and rights-holders would allow them to exercise their agency, address the power imbalances that allow states and businesses to all-too-often ignore community perspectives, and shape economic activity to advance rights. This post argues that changes to the Proposal, including to requirements regarding consultations, remedy, and community governance, would support these aims...

In order to realize the potential of the Proposal on consultation, there should be a requirement that the consultations be meaningful to avoid a box-ticking exercise. Meaningful consultation should include requirements related to procedure and outcomes. At each stage, businesses should be required to create and facilitate conditions for rights-holders to participate in consultations...

The centrality of rights-holders in access to effective remedies means, among other things, that the creation and implementation of remedies should also be informed by the experiences and interests of rights-holders, including a recognition that different groups of rights-holders may experience adverse impacts differently. Centering rights-holders also entails having remedies be accessible, affordable, adequate, and timely from the perspective of those seeking them. The draft Proposal should therefore include language to ensure that community consultations and perspectives are central to creating, designing, and operating remedies...

Better centering rights-holders requires incorporating community perspectives through consultations and in remedial processes, but these measures are just initial steps towards providing rights-holders with a seat at the table. To center rights-holders more fully, they should also have opportunities to engage in governance when they choose, both through the creation or co-creation of mechanisms and as consistent participants in such mechanisms. Rights-holder involvement in governance not only provides additional opportunities for communities to contribute their insights and preferences but also lends legitimacy to governance mechanisms that claim to benefit rights-holders.

Community-created or co-created operational-level grievance mechanisms are examples of approaches that treat rights-holders as governance actors...

MHREDD and other legislation related to business and human rights is a welcome new development, and one that is likely to spread to an increasing number of countries in the coming years. For such legislation to succeed in advancing the rights of the most affected and to lead to better human rights outcomes for rights-holders, it is crucial to anchor such laws and regulations with not only the perspective of rights-holders but their ongoing involvement. To do otherwise, as this post has discussed, would miss an invaluable opportunity to improve the landscape of business and human rights to center rights-holders in the years to come.