Teaching Resources

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Human Rights Due Diligence

Resources for teaching Human Rights Due Diligence (HRDD) include UN and OECD documents, as well as a growing academic literature.

Readings
UN Documents
  • Protect, Respect and Remedy: A Framework for Business and Human Rights, UN doc. A/HRC/8/5 (7 April 2008).

Key theory text on business and human rights, setting out the rationale behind HRDD.

  • Guiding Principles on Business and Human Rights: Implementing the United Nations ‘Protect, Respect and Remedy’ Framework, Report of the Special Representative of the Secretary-General on the issue of human rights and transnational corporations and other business enterprises,” UN doc. A/HRC/17/31 (21 March 2011), available at http://www.ohchr.org/Documents/Publications/GuidingPrinciplesBusinessHR_EN.pdf.

Key instrument detailing the steps involved in HRDD.

  • Office of the High Commissioner for Human Rights, The Corporate Responsibility to Respect Human Rights: An interpretive guide (Geneva: OHCHR, 2012).

Provides additional detailed explanations and examples, targeting business practitioners.

OECD Documents
  • OECD Guidelines for Multinational Enterprises, May 2011, (Paris: Organisation of Economic Cooperation and Development, 25 May 2011).

Applies the UNGPs’ risk-based due diligence approach and expands its application to other issues concerning business impact on society and the environment, using the term risk-based due diligence.

  • OECD Due Diligence Guidance for Responsible Supply Chains of Minerals from Conflict-Affected and High-Risk Areas, 3d rev. ed. (Paris: OECD. 2016).

Detailed guidance on risk-based due diligence for responsible supply chains of minerals from conflict-affected and high-risk areas.

  • OECD and the Food and Agriculture Organization of the United Nations (FAO), OECD-FAO Guidance for Responsible Agricultural Supply Shains (2016).

Detailed guidance on risk-based due diligence for agricultural supply chains.

  • OECD Due Diligence Guidance for Meaningful Stakeholder Engagement in the Extractive Sector (2017).

Detailed guidance on meaningful stakeholder engagement in the extractive sector and can be used as inspiration for other sectors.

  • OECD, Responsible business conduct for institutional investors: Key considerations for due diligence under the OECD Guidelines for Multinational Enterprises (2017).

Detailed guidance on risk-based due diligence for banks, insurance companies and other financial institutions in capacity as investors.

Commentary

A growing body of academic literature in the fields of law, organizations and business ethics addresses HRDD and risk-based due diligence.

  • Larry Catá Backer, Rights and Accountability in Development (Raid) v. Das Air and Global Witness v. Afrimex – Small Steps towards an Autonomous Transnational Legal System for the Regulation of Multinational Corporations, Melbourne Journal of International Law (10(1), 2009), 258-307.
  • Larry Catá Backer, The Guiding Principles of Business and Human Rights at a Crossroads: The State, the Enterprise, and the Spectre of a Treaty to Bind Them All (July 5, 2014), available at https://ssrn.com/abstract=2462844.

Addresses the interrelationship between the duty of states to promotion of risk-based due diligence, as part of their Pillar One obligations, and the implications that this may have for business understandings of due diligence as a process. Backer asserts that the increasing tendency to require disclosure in regard to due diligence risks resulting in an over-emphasis on by corporations on complying with legislative requirements to the detriment of their efforts to identify and manage adverse impact.

  • Jonathan Bonnitcha and Robert McCorquodale, The Concept of ‘Due Diligence’ in the UN Guiding Principles on Business and Human Rights, European Journal of International Law (Volume 28, Issue 3, 13 November 2017), 899–919, available at http://www.ejil.org/article.php?article=2794&issue=137.

Critiques the due diligence concept introduced by the UN Framework and elaborated with the UNGP for a flawed inner logic that confuses two meanings of due diligence: a standard of conduct (to discharge an obligation), and a process (to manage risks to businesses).

  • Karin Buhmann, Neglecting the proactive aspect of human rights due diligence? A critical appraisal of the EU’s Non-Financial Reporting Directive as a Pillar One avenue for promoting Pillar Two action, Business and Human Rights Journal (2018)

Analyzing the EU’s 2014 Non-Financial Reporting Directive as an example of governmental regulation for promoting responsible business conduct, discusses conditions for HRDD and reporting as a communication process to stimulate organizational change in accordance with the UNGPs to avoid harm, including through affected-stakeholder engagement. The article argues that the Directive’s predominant focus on ex-post measures, including reporting on steps taken, rather than on a process of stakeholder engagement, overlooks the importance of ex-ante organizational learning and changed business conduct to prevent adverse human rights impact. It offers recommendations for regulators and stakeholders for stronger and ‘smarter’ regulation to promote the identification of adverse human rights risks and pro-active management of those to reduce adverse impacts from occurring.

  • Karin Buhmann, Changing sustainability norms through communicative processes: the emergence of the Business & Human Rights regime as transnational law. Edward Elgar Publishers, in the Globalization, Corporations and the Law series. (2017)
  • Karin Buhmann, Business and Human Rights: Analysing Discursive Articulation of Stakeholder Interests to Explain the Consensus-based Construction of the ‘Protect, Respect, Remedy UN Framework, International Law Research (Vol. 1, Issue 1, 2012), 88-101, available at http://www.ccsenet.org/journal/index.php/ilr/article/view/21663.

Explains how the application of the term due diligence, which was well-known to corporate lawyers and managers as a process to identify risk to the company, helped open their minds to the benefits of corporations having in place a process to identify and manage risk caused by the company to society.

  • Damiano De Felice, Banks and Human Rights Due Diligence: a critical analysis of the Thun Group’s discussion paper on the UN Guiding Principles on Business and Human Rights, The International Journal of Human Rights (2015), 319-340.

Observes that the Thun Group discussion paper, on the one hand, lays the foundation for the first ever comprehensive guide on how universal banks should move from CSR to HRDD, but, on the other, neglects or downplays fundamental HRDD elements, in particular engagement with affected stakeholders and the provision of remedy.

  • Olivier De Schutter, Mark Taylor, Anita Ramasatry, Robert C Thompson, Human Rights Due Diligence: The role of states, International Corporate Accountability Roundtable with the European Coalition for Corporate Justice and the Canadian Network on Corporate Accountability (2012).

A comprehensive study on the role of states in regard to HRDD that traces the origin of HRDD and related requirements or expectations on non-state actors to exercise due diligence, due care or similar. Find that the origins of HRDD can be traced to legal instruments that states are already using and that regulatory due diligence procedures found in a variety of jurisdictions are rather similar to the processes prescribed by the UNGPs.

  • Björn Fasterling, Human Rights Due Diligence as risk management: social risk versus human rights risk, Business and Human Rights Journal (2017).

Discusses the UNGP’s risk-based due diligence approach against the management-theory based conception of social risk Argues that an effective integration of human rights due diligence processes into corporate risk management systems would require an elevation of human rights respect to a corporate goal that determines corporate strategy. For the risk management process this would imply that business-related adverse human rights impacts are defined and managed as vulnerabilities for the business corporation.

  • Björn Fasterling and Geert Demuijnck, Human Rights in the Void? Due Diligence in the UN Guiding Principles on Business and Human Rights’ Journal of Business Ethics (116:4, 2013).

Argues that the UN Framework and UNGPs will contribute to enhancing the observation of human rights matters in corporate management procedures and to contribute to higher levels of accountability and human rights awareness.

  • Mary Footer, Human Rights Due Diligence and the Responsible Supply of Minerals from Conflict-affected Areas: Towards a Normative Framework? in Jernej Letnar Černič and Tara Van Ho (eds.), Direct Human Rights Obligations of Corporations (The Hague: Wolf Legal Publishers, 2015).
  • Olga Martin-Ortega, Human Rights Due Diligence for Corporations: From voluntary standards to hard law at last?’, Netherlands Quarterly of Human Rights (32:1, 2014), 44.
  • John Gerard Ruggie and John F. Sherman III, The Concept of ‘Due Diligence’ in the UN Guiding Principles on Business and Human Rights: Reply to Professors Bonnitch and McCorquedale, European Journal of International Law (2017), available at http://www.ejil.org/article.php?article=2799&issue=137.

Responds to the critique by Bonnitcha and McCorquodale (above).

  • John Ruggie and Tamaryn Nelson, Human Rights and the OECD Guidelines for Multinational Enterprises: Normative innovations and implementation challenges. Harvard Kennedy School/Corporate Social Responsibility Initiative Working Paper No. 66, May 2015.

This academic conversation illustrates the broadness of the risk-based due diligence concept. The Bonnitcha/McCorquedale article takes a conventional law-based approach to the concept, while Ruggie and Nelson’s piece places the risk-based due diligence approach and the steps that it entails into a broader context that combines legal and non-legal aspects, including the economic interests that drive much business action. These articles can serve as an interesting point of departure for students’ discussion of various social science approaches, the limitations or strengths of particular, single-disciplinary approaches and the benefits or challenges in adopting broader and sometimes pragmatic combinations of social science approaches.

  • Cees Van Dam, Enhancing human rights protection: A company lawyer’s business, Inaugural lecture – Rotterdam School of Management Special Chair International Business and Human Rights, 18 September 2015. Rotterdam: Rotterdam School of Management, Erasmus University.

Makes interesting observations on legislative initiatives on due diligence, or duty of care.

Other
  • A4ID (Advocates for International Development), Law firms’ implementation of the Guiding Principles on Business & Human Right: Discussion Paper (November 2011).
Videos

Video on stakeholder engagement and involving affected stakeholders.

Exercises

The following are examples of classroom exercises for teaching HRDD.

  • Ask students to assess a company’s CSR/sustainability/BHR policy with regard to HRDD, check its implementation through the value chain, and critically assess this against the UNGP’s requirements. The company can be identified by the students, or selected by the instructor. Estimated time: 45-90 minutes.
  • Based on media reports of a company’s social or human rights impacts, students identify the company’s impacts, discuss its role and actions, and critically assess this against the UNGPs. Ask students to determine whether the company’s due diligence policy and its implementation has been adequate, and if not, how. Ask students to develop recommendations for the company to respond to the requirements of risk-based due diligence in regard to the issue at hand (including including reporting and remedy) and to identify and manage human rights risks in the future. Estimated time: 45-90 minutes.
  • Many business ethics and CSR teaching cases concern situations in which a company  or state agency has caused human-rights harm (including through abuse of core international labour rights), or where there is a risk that a company may cause such harm. Such cases can offer excellent exercises for students of BHR to identify the human rights risks that have been overlooked by case authors, company managers, or state actors. Students can assess the adequacy/deficiency of the HRDD process, and develop recommendations for the company or state agency for a robust HRDD process for the future. (See, e.g., Ramirez, J. 2013. ‘Vestas and the Indigenous Communities in Oaxaca, Mexico: Clean Energy gets Messy’. The Case Centre & Frederiksberg: CBS: Copenhagen Business School (available through thecasecentre.org, cases and teaching notes are available to instructors for free)). Estimated time: 60-180 minutes.
  • Karin Buhmann and Line Pedini Rasmussen (2015), Lundbeck’s Pentobarbital Human-Rights Dilemma, or When Good Intentions Turn Lethal: Issue management in a CSR context, The Case Centre & Frederiksberg: CBS: Copenhagen Business School Case (available through thecasecentre.org, case and teaching notes are available to instructors for free). Estimated time: 60-180 minutes.

Exercise based on a teaching case on a pharmaceutical company producing a medicine used (against the intentions of the company) to execute prisoners sentenced to death.

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This bibliography may be cited as:

Karin Buhmann, “Teaching Resources for Human Rights Due Diligence,” in Teaching Business and Human Rights Handbook (Teaching Business and Human Rights Forum, 2018), https://teachbhr.org/resources/teaching-bhr-handbook/teaching-notes/human-rights-due-diligence/teaching-resources/(opens in a new tab).