From soft to hard law: the way forward?

At the same time as the EU looks to progress its proposal to introduce mandatory human rights due diligence, the UN is once again discussing its own proposal for a binding Human Rights Treaty. 

The treaty would look to replace the incumbent, voluntary UN Guiding Principles on Business and Human Rights, which were themselves introduced in 2011 following a failure to agree such a mandatory instrument. 

As things come full circle to look again at a binding instrument, both the UN and EU are demonstrating the increasing trend in the ESG space to look to mandatory, hard law instruments rather than asking businesses to take action voluntarily. The benefit of this approach being the level playing field and legal certainty that it introduces. 

On the proposal itself, there are some headline points businesses should be aware of, foremost among them the idea that carrying out the required due diligence will not be sufficient to let them off the hook for abuses committed. The treaty also looks to ensure recourse in more readily granted for abuses that take place in foreign jurisdictions (i.e. expanding the potential for parent company liability actions).

Having first seen the Zero Draft for this treaty a couple of years ago now, it still appears aspirational. However, now taken alongside all the other developments in this space and the wider direction of travel, it is something companies should certainly be keeping an eye on and working out what they are doing/need to be doing on the social limb of ESG and human rights.