15 May 2023
On 25 April 2023, the European Parliament’s committee on legal affairs (the JURI Committee), adopted its position on the EU’s proposed Directive on Corporate Sustainability Due Diligence.
The Committee’s progress has brought the Directive a step closer to becoming law. If voted through Parliament in its plenary sitting, the JURI position will form the basis of the Parliament’s negotiating stance in the EU’s trilogue process, through which a final agreement on the text will be sought by the Parliament, Council and Commission.
Yet despite cross-cutting improvements proposed by the Committee, the Parliament’s expected position on the text falls short of fully reflecting the role of human rights defenders in ensuring business respect for human rights and addressing the risks they run in doing so.
The Directive, if agreed, will oblige companies to identify and assess human rights and environmental risks and impacts related to their activities, to take steps to address and mitigate risks and negative impacts identified, to track their effectiveness in doing so and communicate what they have done publicly. This is the due diligence process imagined by the Commission in its initial proposal.
Due diligence, however, is not an end in itself. It will only be of value if it makes a real difference to the enjoyment and protection of human rights.
In order to prove effective in practice, it has to be carried out with the communities and groups directly affected by business activities at its core. The EU can ensure this by legislating with the interests of those whose human rights are affected at heart.
This means placing obligations on businesses to consult affected and potentially affected communities and groups, and human rights defenders among them, in a meaningful way throughout the due diligence process; addressing the risk of retaliation against people organising and speaking out against negative impacts of corporate activities; and empowering people whose rights are affected to seek remedy and accountability.
It involves recognising and addressing the power imbalances that exist between corporations and communities.
Part of this has to include supporting human rights defenders.
Defenders play a key role within communities and groups seeking to defend their rights in the face of harmful business activity. They are to the forefront, often as victims themselves, in the pursuit of justice where violations occur, and can also be found standing as allies of those directly affected, whether as members of civil society, grassroots groups or other associations.
As a result, they are under attack. In 2022 alone, the Business and Human Rights Resource Centre recorded 555 attacks on defenders working in the context of business, including 78 killings.1
The EU has recognised the risks defenders face, making support for HRDs a priority in its external human rights policy2. The bloc has also produced Guidelines for EU Embassies on how to support defenders and is preparing a separate Directive on the strategic lawsuits used to silence them3. The due diligence Directive is a significant opportunity to build on these commitments of support, yet the moment risks being missed.
Over the course of the Directive’s development, I have been calling for the EU to include specific provisions on HRDs in the text.4 In particular, I have urged the institutions to:
- ensure companies assess risks for defenders by including the UN Declaration on Human Rights Defenders among the list of human rights instruments set to form the material scope of companies’ due diligence obligations;
- include mandatory stakeholder engagement obligations throughout the due diligence process and define human rights defenders as a key group to engage with;
- place obligations on companies and Member States to mitigate risks of retaliation against human rights defenders and others raising concerns about the impact of company activities.
While there have been promising developments in the reflection of these provisions and other relevant points in the positions adopted by the Council and Parliament, even the JURI Committee’s encouragingly progressive report falls short of what is needed. This is notably the case when it comes to including the UN Declaration on HRDs in the Annex to the text, where the material scope of the due diligence obligations is currently laid out, and adequately defining HRDs, as well as organisations working for the protection of human rights, as stakeholders to engage with.
As the Parliament goes on to finalise its position and the trilogue process begins, the institutions must improve the text, ensuring that the role of human rights defenders and the risks they face are fully taken into account.
I will continue to follow the process.
2 EU Action Plan on Human Rights and Democracy 2020-2024, accessible at https://www.eeas.europa.eu/sites/default/files/eu_action_plan_on_human_rights_and_democracy_2020-2024.pdf
3 The ‘anti-SLAPP’ Directive. See: https://ec.europa.eu/info/law/better-regulation/have-your-say/initiatives/13192-EU-action-against-abusive-litigation-SLAPP-targeting-journalists-and-rights-defenders_en.