18 Feb 2021

The European Commission Sustainable Corporate Governance initiative is a pivotal juncture,  presenting a key opportunity to introduce obligations on business to conduct human rights and environmental due diligence...

The Irish Coalition on Business and Human Rights (ICBHR) made a detailed submission supporting a robust EU framework during consultation on the initiative. The ICBHR is a grouping of civil society organisations and experts, and is a member of the European Coalition for Corporate Justice. The Coalition was established in response to concerns about the negative human rights and environmental impact of business, and advocates for increased accountability, access to remedy, and national oversight concerning the protection of human rights. It strongly supports legal obligations of human rights and environmental due diligence, requiring companies adopt continuous processes to identify actual and potential risks and impacts, and to prevent, mitigate and account for such risks and impacts in their operations and throughout their value chain. It believes the EU and Member States should lead meaningful change.

Ultimately, what is achieved will depend on how robust the criteria and standards introduced are...

The measure of effectiveness of due diligence is the extent to which harm is prevented and mitigated. If legislation emerges as passive ‘reporting’, it will not serve rights holders or wider stakeholders. Currently, those negatively impacted, including communities whose land has been destroyed through environmental damage or have been forcibly displaced, women who have experienced sexual violence and victims of forced labour, face extensive barriers to remedy. ICBHR members, many of which are development and humanitarian organisations, regularly encounter communities impacted by environmental and human rights abuses, for example, associated with the Cerrejón mine in Northern Colombia. Provision must be made for legal liability, including for failure to conduct appropriate due diligence, preventative relief, and civil and criminal mechanisms. Within proceedings, the burden should be on business to prove due diligence. Recognising existing challenges for victims and the risk of denial of justice, EU Regulations should be altered to facilitate grounding jurisdiction and choice of law. States must reduce existing barriers to remedy.

Robust due diligence obligations should positively impact sustainability. For the ICBHR, the aim for this initiative is that it reduce power imbalances, protect those enduring the negative impacts of business, and provide accountability for harm. Its success will depend on the extent to which justice and preventing harm to people and the planet remain at its core.