Legislating for Corporate Human Rights Due Diligence in Ireland: new paper

One of the key recommendations made to the Irish government by the UN Committee on the Elimination of Racial Discrimination last week was that Irish companies should be required to undertaken human rights due diligence. In light of its concerns regarding the import, sales and use of coal by Irish companies from the controversial Cerrejón mine in Colombia, the Committee recommended that Ireland:

Adopt a regulatory framework that ensures that all companies domiciled in the State party or under its jurisdiction identify, prevent and address human rights abuses in their operations in Ireland or abroad and that such companies can be held liable for violations.

For several years, similar calls have been made for mandatory human rights due diligence in Ireland by bodies such as the Irish Human Rights and Equality Commission, the Irish Congress of Trade Unions and Trócaire.

Ireland’s National Plan on business and human rights 2017-2020 makes a number of reference to human rights due diligence, but only to encourage or promote the concept as a means of persuading business to respect human rights. The independent study commissioned by the Department of Foreign Affairs and Trade to provide a baseline assessment of the regulatory and legislative environment relating to business and human rights in Ireland took issue with this approach:

The commitments in the National Plan propose a largely voluntary regime, whereby the role of the State is to encourage and support rather than to ensure compliance by way of a mandatory regime. While such an approach may derive results in some cases, it may not result in compliance across the board, and indeed may take longer to achieve compliance.

The study thus recommends mandatory human rights due diligence for Irish companies, with a particular emphasis on companies doing business with the State, as well as those operating in high risk industries or conflict zones (including outside of Ireland).

In this context of national, as well as European and international efforts aimed at developing mandatory human rights due diligence for business enterprises, I am sharing details of a draft paper I have just completed which explores the prospect for such legislation in Ireland. Here is the abstract:

This article seeks to explore the potential for embedding business and human rights in Ireland through legislating for human rights due diligence for business enterprises. Part II begins by setting out the international and national contexts, through an analysis of Ireland’s engagement with the United Nations business and human rights agenda. The discussion of the Irish Government’s undertakings on business and human rights reveal limited progress to date, despite ministerial claims that Ireland could be a “leader” in the area of business and human rights. Part III examines the concept of human rights due diligence as articulated in relevant international initiatives and in a number of national laws on the matter. It elaborates on the concept’s substance and scope, taking into account existing international human rights law. Part IV then turns to human rights due diligence in the Irish context. This section discusses existing commitments in Ireland’s National Plan and proposals on human rights due diligence for companies in Ireland, before turning to consider potential legislative activity in this area. Human rights due diligence for companies is acknowledged but not required by the 2017 Regulations implementing the EU Directive on Non-Financial Reporting, while it can be argued that the public sector duty as set out in the Irish Human Rights and Equality Commission Act 2014 contains the seed for mandatory due diligence for State-owned or controlled companies. The section considers the possibilities and prospects for legislative development in this area. Part V concludes.  

A draft of the article is available on SSRN. Comment and suggestions are most welcome.

 

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