Guest post – Mandatory human rights and environmental due diligence in the new Programme for Government: needed now more than ever

Very pleased to share this guest post from Siobhán Curran, who works with Trócaire as Policy and Advocacy Adviser on Human Rights and Democratic Space. You can follow her @SiobhanMCurran.

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The new Programme for Government commits to review “whether there is a need for greater emphasis on mandatory due diligence” in relation to business and human rights. Although the language is tentative, the placing of human rights and environmental due diligence in business on the political agenda for the next Government is vitally important and to be welcomed. There is a need for mandatory human rights and environmental due diligence legislation in Ireland, as a matter of urgency. This should be part of Ireland’s vision for human rights in business, along with Ireland’s support for a UN Treaty to regulate transnational corporations and other business enterprises, and shaping upcoming EU legislation to ensure human rights and environmental protection in supply chains. These interlinked legislative processes hold the prospect of transforming business activities throughout the world, with priority given to people and the planet, laying the foundations for a sustainable, people-centred model of doing business.

Bertha Zuniga Cáceres (28) stands beside a mural of her mother, murdered human rights activist, Berta Cáceres. Berta is the general coordinator of the Civic Council of Popular and Indigenous Organizations of Honduras (COPINH). Photo: Garry Walsh

Due diligence in its simplest terms means ensuring that companies are not involved in human rights and environmental harm, through their direct actions, or indirectly, for example through the actions of their subsidiaries, investments or business relationships. This would mean that a company should have processes to ensure that they, their suppliers or investees, are not causing the pollution of land, imposing developments without consent of indigenous communities, evicting communities from their land or perpetrating attacks on human rights defenders, all of which Trócaire witnesses in our day-to-day work.

Voluntary measures have not been successful in embedding a culture of human rights or respect for the environment in business practice. The recent European Commission study on due diligence requirements through the supply chain shows that only one in three businesses in the EU are currently undertaking due diligence on human rights and environmental impacts.[1] Preliminary research by the Trinity Centre for Social Innovation indicates that systematic human rights due diligence is either not occurring, or at least is not being disclosed in Ireland. No company in the sample disclosed a human rights due diligence process and no company had a formal commitment to remedy adverse impacts caused by it to individuals, workers or communities.[2] In 2019, a report commissioned by the Department of Foreign Affairs and Trade, recommended that consideration ought to be given to the adoption of mandatory human rights due diligence and that this should be a minimum requirement for state companies and businesses that obtain government contracts through the public procurement process. [3]

This recommendation is key, as there are companies in Ireland linked to human rights abuses abroad, including state companies, as highlighted by the UN Committee on the Elimination of Racial Discrimination in 2019. For example, the ESB are purchasing coal from a mine in Colombia that has been linked with serious human rights abuses, in particular affecting people of African descent and indigenous peoples.[4] The recently published UN database on businesses connected to Israeli settlements in the occupied Palestinian territory, lists companies engaged in economic activities that keep these illegal settlements financially sustainable and are inextricably linked with human rights abuses. One of the companies named is Airbnb, which processes bookings through a Dublin-domiciled company, Airbnb Ireland UC.

The Coronavirus has further exposed poor human rights business practice across the world, in particular in the garment industry, whereby some major companies have refused to pay suppliers for goods already produced leaving factories unable to pay the wages of some of the poorest workers in the world (including companies that have Irish branches [5]). These cases demonstrate why corporations need to be legally required to assess their human rights impact across their value chain and not just with their immediately contracted employees. As the Coronavirus spread around the world, it has been alarming to see governments using emergency measures as a smokescreen to continue targeting human rights defenders, in order to facilitate further corporate developments. During the biggest global health threat in recent times, defenders and communities continue to be attacked and are even more vulnerable, as their movement is restricted and police and military presence has increased. In April, campesina leader Iris Argentina Álvarez was murdered during a forced eviction carried out by security guards from the “La Grecia” sugar company, in Honduras. In the context of a pandemic, an uncertain future and a global economic downturn, there is a danger that human rights and environmental standards will be eroded even further in some countries, in order to attract investment. This is an important moment for states to meet their obligations to ensure that responsible business conduct is rewarded and those that profit from human rights and environmental violations, are held to account.

Countries such as Ecuador and South Africa have led the global process for a UN Treaty to regulate transnational corporations and other business enterprises. In Europe, France have led the way with the development of a legally binding obligation for parent companies to identify and prevent adverse human rights and environmental impacts throughout the supply chain. Increasingly, European countries now recognise the need for mandatory human rights and environmental due diligence legislation, with legislative processes underway and government commitments in nine European countries. The European Commission will initiate a legislative initiative on mandatory human rights and environmental due diligence obligations for EU companies in early 2021. Business leaders across Europe are calling for legislation to provide legal certainty for companies and to create a level playing field for businesses. The momentum is building towards legislative change to ensure human rights and environmental protections throughout the value chain. It is time that Ireland recognises this and moves swiftly to develop mandatory human rights and environment due diligence legislation.

[1] European Commission Press Release (24/02/2020) ‘Commission study shows the need for EU-level legislation on due diligence throughout the supply chain on human rights and environmental impacts’

[2] Centre for Social Innovation, Trinity Business School (2019) ‘Irish business & human rights: Benchmarking compliance with the UN Guiding Principles.’

[3] Department of Foreign Affairs and Trade (2019) ‘National plan on business and human Rights: Baseline assessment of legislative and regulatory framework’

[4] UN Committee on the Elimination of Racial Discrimination (2019) ‘Concluding observations on the combined fifth to ninth reports of Ireland’ CERD/C/IRL/CO/5-9

[5] The Workers Rights Consortium are tracking responsible business practice during this time. See https://www.workersrights.org/issues/covid-19/tracker/