Human rights due diligence and the root causes of harm in business operations : a textual and contextual analysis of the guiding principles on business and human rights / Radu Mares.

Following John Ruggie’s UN mandate (2005-2011) the notion of
human rights due diligence (HRDD) has become widely used by policymakers,
corporations, NGOs and professionals. The question is whether this HRDD
concept, as developed in the UN Guiding Principles (GPs), adequately addresses
the deeper causes of human rights infringements in business operations. This
article provides a textual and contextual analysis of the GPs and related
documents with a focus on the concepts of mitigation and root causes. The
GPs contain provisions that open the door for HRDD to be interpreted for
a less demanding result. There are also drafting imperfections. The GPs
refer repeatedly to mitigation of impacts which introduces redundancy and
ambiguity in an instrument prized for its clarity and simplicity. This analysis
of the GPs addresses concerns that the GPs propose an overly process-oriented
and risk-management approach that leaves business too much fexibility and
discretion. A closer look reveals that mitigation in the GPs entails multiple
meanings, functions and organizational contexts. A surprisingly multifaceted
concept is placed at the center of HRDD. To realize its human rights protection
potential, the notion of HRDD must impress with utmost clarity that HRDD
cannot be merely about reducing abuses and applying bandaids on symptoms,
but should aim for not less than elimination of infringements of human rights
from a company’s operations and should address the underlying, deeper causes
of abuses. Clarifying mitigation will ensure the internal consistency of the
GPs and present HRDD as a rightholder-centered risk management approach
suited to the human rights context.