Your company may be in scope under one or more Corporate Human Rights Due Diligence regulations depending on the financial or employee threshold set out in the concerning regulation.
Corporate Human Rights Due Diligence Laws
– Uyghur Forced Labour Prevention Act
– EU Corporate Human Rights Due Diligence Directive
– German Supply Chain Act
– French Corporate Duty of Vigilance Law
– Dutch Child Labour Due Diligence Law
– California Transparency in Supply Chains Act
– Modern Slavery Acts of the United Kingdom and Australia
Additionally, these regulations are to be read with the relevant international legal instruments set out below. The relevance of these instruments will depend on the particular human rights risks and impacts your company has identified. Often several international legal instruments will be relevant due to the need to take into account of gender, ethnicity, migration status and disability, for instance – each of which is governed by its own treaty and set of standards and guidelines.
For instance, the EU CS3D require a consideration of gender, age, race, ethnicity, class, caste, education, migration status, disability, as well as social and economic status when conducting due diligence. This requirement recognises that due diligence must be gender and culturally responsive approach.
We can advise on the relevance of international human rights instruments and design practical measures for companies to comply with the appropriate instruments accordingly.
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Core Treaties
– Convention on the Elimination of All Forms of Racial Discrimination (CERD);
– Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW);
– Convention on the Rights of Persons with Disabilities (CRPD);
– Convention on the Rights of the Child (CRC);
– Convention on the Protection of the Rights of All Migrant Workers and Members of their Families;
– Convention for the Protection of All Persons for Enforced Disappearance (CPPED)
– Convention Against Torture (CAT)
– Declaration on the Rights of Indigenous Peoples, including in relation to Free, Prior and Informed Consent (FPIC);
Read with UN Guiding Principles on Business and Human Rights and OECD Guidelines.
ILO Conventions
– Equal Remuneration (ILO Convention No. 100)
– Discrimination (Employment and Occupation) (ILO Convention No. 111)
– Maternity Protection Convention (ILO Convention No. 183)
– Violence and Harassment Convention (ILO Convention No. 190)
Conventions relating to egregious crimes
– Convention on the Prevention and Punishment of the Crime of Genocide
– Convention on the Non-Applicability of Statutory Limitations of War Crimes and Crimes Against Humanity
– Convention on the Suppression and Punishment of the Crime of Apartheid
We advise on whether practical due diligence measures meet the required standards under the relevant Corporate Due Diligence regulations read together with other international legal instruments and standards.
Our advice is customised to sector-specific risks, local contexts, and immediate needs of affected populations and it covers identification of actual and potential adverse risks, prevention and mitigation of risks, remediation, disclosures, reporting and communication.
When assessing responsibility to prevent or adequately mitigate adverse impacts, due account should be taken of the so-called ‘level of involvement of the company in an adverse impact’ in line with the international frameworks and the company’s ability to influence the business partner causing or jointly causing the adverse impact.
Companies should take appropriate measures to prevent or mitigate the adverse impacts that they cause by themselves (so called ‘causing’ the adverse impact as referred to in the international framework) or jointly with their subsidiaries or business partners (so called ‘contributing’ to the adverse impact as referred to in the international framework).
When companies are not causing the adverse impacts occurring in their chain of activities themselves or jointly with other legal entities, but the adverse impact is caused only by their business partner in the companies’ chains of activities (so called ‘being directly linked to’ the adverse impact as referred to in the international framework), they should still aim to use their influence to prevent or mitigate the adverse impact caused by their business partners or to increase their influence to do so.
We can assess your company’s level of involvement and recommend appropriate measures accordingly.
Once potential and actual impacts have been identified through a Human Rights Impact Assessment, we can advise on and recommend measures for remediation, corrective actions and preventive actions to:
– Prevent potential impacts from occurring;
– Mitigate impacts which are occurring;
– Remediate adverse impacts which have occured.
Our recommendations will be multi-faceted, i.e. preventive, redressive and deterrent, and, address the differentiated intersectional impacts on women and specific marginalised or vulnerable groups who are affected. We can also review and advise on “gender-transformative remedies” to address systemic issues that underpin discrimination, gender-based violence and gender stereotyping.
To track and evaluate effectiveness, we work with the company to develop a Monitoring and Evaluation Plan with Key Performance Indicators (KPIs).
The M&E Plan sets out assignment of responsibility, decision-making procedures, budget allocation, oversight processes and KPIs to measure effectiveness.
Most human rights due diligence legislation require companies to consider additional standards. For instance, taking account of specific contexts or intersecting factors, including among others, gender, age, race, ethnicity, class, caste, education, migration status, disability, as well as social and economic status, as part of a gender- and culturally responsive approach to due diligence, companies should pay special attention to any particular adverse impacts on individuals who may be at heightened risk due to marginalisation, vulnerability or other circumstances, individually or as members of certain groups or communities, including Indigenous Peoples, as protected under the United Nations Declaration on the Rights of Indigenous Peoples, including in relation to Free, Prior and Informed Consent (FPIC).
In doing so, companies will need to take into consideration, where relevant, international instruments such as the International Convention on the Elimination of All Forms of Racial Discrimination, the Convention on the Elimination of All Forms of Discrimination Against Women, the Convention on the Rights of Persons with Disabilities.
We can also support the investigation of specific incidents, particularly involving egregious violations, or, violations involving physical and sexual acts. In such cases, it is likely that operational level grievance mechanisms will be under-utilised due to distrust, perceptions of confidentiality, fear of retaliation and social stigma. Even where mechanisms are accessible in principle, an effective process does not always result in an effective outcome. Trauma, lack of rights-awareness, literacy, shame and guilt are amongst a handful of reasons why aggrieved individuals are simply unable to describe incidences in detail, or, explain how the incidences have impacted them. Often they need the external help of a human-rights expert who is trained to interview victims sensitively, elicit material information whilst mitigating the risk of retraumatisation. This is not a task that can be left to employers and social auditors which may risk double victimisation on top of under-detection of harm or undercompensation of victims.
In cases of egregious violations, there is a high risk of complainants and information-providers to withdraw from the remediation process entirely due to social pressure, stigma, retaliation and fear of loss of livelihoods, wages and safety. To avoid this, we can assist companies to design victim-centered grievance and remedy processes which victims can participate in and express their preferences, whilst being availed holistic forms of support such as psychosocial counselling, social support, medical aid, legal aid amongst others.
If company has caused or jointly caused an adverse impact, it should restore the affected persons to a situation equivalent or as close as possible to the situation they would be in had the actual adverse impact not occurred.
The remedy must be proportionate to the company’s implication in the adverse impact.
Remedy schemes must also be holistic and compatible with the human rights of affected parties.
We can recommend appropriate package of remedies in accordance with Principle 25 of the United Nations Guiding Principles which can encompass interim and final remedies consisting of apology, guarantees of non-repetition, restitutions, rehabilitation, financial compensation, non-financial reparations, punitive sanctions and injunctions.
Where relevant, we can advise companies on the appropriateness of certain remedies where egregious violations have been committed, as well as, situations which would require the companies to cooperate with judicial mechanisms. If remedies are concluded upon signing of settlement agreements, we can also advise companies on whether the terms of settlement such as the use of non-disclosure terms, waiver of rights, including the right to seek judicial remedies, are legal and/or appropriate.
Human Rights Impact Assessment is a process of identifying and assessing actual and potential adverse human rights impacts of a company’s operations on the ground. It is an emerging practice that requires human rights expertise, in particular direct work with vulnerable groups and a deep understanding of risks and impacts from a gender and intersectional lens. Certain human rights impacts, namely gender-based violence and sexual violence, will also require specific expertise on gender and sexual-related crimes, without which, the full breadth and depth of gendered impacts may not be identified and analysed.
We conduct two types of human rights impact assessment: a high-level impact assessment and a specific impact assessment. For a high-level assessment, we assess industry-related, country-specific or region-specific human rights risks, as well as, situations through a desk review of reports by the UN, government and NGOs, academic journals and news articles. If necessary, we interview stakeholders, local NGOs, community groups, affected populations and trade unions. The assessment concludes with a detailed risk profile for the area and community most impacted, the likelihood, severity and urgency of of the risks, a context analysis, and an analysis of the nature and severity of human rights impacts. This is benchmarked against the relevant human rights standards.
For a specific human rights assessment, the focus will be on specific incidents on the ground. It is important for companies to consult with women’s rights experts to undertake this task, as it is delicate and sensitive and a wrong approach can lead to break down of trust, and, in some cases retraumatisation. For specific assessments, we engage with potentially affected stakeholders to gain a holistic and lived-reality perspective of specific impacts. The design of a specific human rights assessment is critical. Power differentials can determine who is included in the assessment, how they are included and whether they can meaningfully express themselves and provide feedback safely. We use participatory models of consultations to ensure inclusion and put in place measures to ensure accessibility, and more importantly, safety, confidentiality and privacy for those participating in the process (“Do No Harm” standards). The assessment concludes with a detailed risk profile of the company’s operations, context analysis, description of incidents, causes and consequences analysis, and, an analysis of the nature, prevalence and severity of the impact. Our assessment takes a 360 view of discrimination and violence and examines it from a financial, psychological, physical, sexual, psychosocial, socio-cultural lens. This is benchmarked against the relevant human rights standards.
Yes. Most companies who are engaged in human rights due diligence would have a human rights policy to express their commitment to respect human rights. As companies start to take stock of lessons learned, we can support them in reviewing policies and drafting standard operating protocols (SOPs) to operationalise their policies across all company functions to integrate lessons learned.
We can develop training packages to corporate actors, sustainability officers, suppliers and other stakeholders on the salient topics and practical skills. Our training modules comprise of theory and skills-based topics.
The theory-based modules can encompass:
– International laws and standards on business and human rights (see first tab);
– Concepts and applications of gender and intersectionality in human rights due diligence;
– Human rights of vulnerable and marginalised groups such as women and children, indigenous communities, human rights defenders and migrant workers;
– Gender-based Violence and Sexual Violence;
– Approaches and Methodologies: rights-based approach, survivor-centered approach, trauma-informed approach, gender-competent approach and non-discrimination.
The skills-based modules can encompass practical skills such as:
– Case Management
– Interviewing vulnerable victims using survivor-centered and trauma-informed approaches;
– Protecting confidentiality during the grievance process;
– Assessing risks which victims are likely to face during the grievance process;
– Drafting statements of facts;
– Analysing information and evidence;
– Reporting on material findings against the laws and standards;
– Conducting an intersectional analysis of human rights risks and impacts based on gender, age, race, ethnicity, class, caste, education, migration status, disability, as well as social and economic status amongst others.
Our modules are designed by human rights practitioners who have direct work and experience with victims of human rights impacts, as well as, training experience. Methodologies for training can include real-life case studies, scenario-based planning, role-play, group-work and presentations to ensure practical relevance. With our approach, corporate actors will be equipped with knowledge on salient issues and empowered to make informed decisions to effectively address the challenge of human rights in business today.
