Mandatory human rights due diligence in domestic laws: Comparing legislative approaches from the perspective of accountability

The paper compares national mandatory due diligence laws from the perspective of accountability for negative effects on human rights. The normative basis of this comparison are the UN Guiding Principles, in particular GP 3 and 22. The paper will compare the UK Modern Slavery Act of 2015, the French Loi de Vigilance of 2017 and the Dutch Wet Zorplicht Kinderarbeid of 2019 as examples of existing mandatory human rights due diligence laws. In addition, the paper will assess legislative proposals discussed in other EU member states, including Germany, Austria and – possibly – Norway or another country. Furthermore, the paper will draw on the consultation documents of the European Commission on Corporate Due Diligence and the Legislative Initiative for Human Rights Due Diligence Legislation of the European Parliament. The paper will analyse these laws and legal instruments based on the legitimacy and effectiveness of their mechanism of accountability. Broadly speaking, three types of accountability mechanisms can be distinguished: (1) Transparency and reporting, (2) civil liability and (3) enforcement through administrative measures. First studies indicate that transparency and reporting requirements have not led to significant changes in the behaviour of companies and have not given affected stakeholders adequate access to remedies. The long term effects of civil liability have not yet been measured and assessed, but it seems that a reliable threat of liability may be an incentive for companies to take human rights violations more seriously. However, civil liability typically provides opportunities for victims of human rights violations to claim for compensation which suggests that this instrument can lead to an effective access to remedies. So far, there is no empirical basis to assess the effectiveness of administrative measures which is why the paper will have to consider experiences in other legal regimes which use administrative measures such as environmental law, competition law or anti-money laundering law. The paper will conclude that governments need to carefully assess the effectiveness of the accountability mechanisms when drafting and implementing human rights due diligence laws.