The UN’s Guide to Heightened Human Rights Due Diligence: business and human rights in conflict-affected areas
The United Nations Guiding Principles on Business and Human Rights have become a reference framework for companies wishing and needing to take human rights and their impact on human rights into account.
Based on the premise that there is a high risk of " companies becoming involved in grave human rights abuses […] in contexts affected by armed conflicts and other situations of widespread violence ", the United Nations Development Programme and the Working Group on Business and Human Rights drafted a Guide to Heightened Human Rights Due Diligence for Business in Conflict-Affected Contexts in 2022.
This Guide, whose objective is "avoiding or mitigating negative impact [on human rights] that a business can cause, contribute to, or be directly linked to", could be a companion for companies operating in sensitive contexts.
Why implement heightened due diligence?
Non-binding in nature, the Guide is aimed primarily at voluntary companies that wish to understand the risk that their presence in sensitive areas poses to conflict and human rights, and to implement measures to mitigate or eliminate this risk.
Secondly, although the Duty of Vigilance Act makes no reference to the context of armed conflict, in fact, enhanced due diligence is required of companies falling within its scope that operate in sensitive areas. This will make it possible to account for a context which, by its very nature, is conducive to human rights abuses, and to ensure that their vigilance plan is effectively capable of "identifying risks and [...] preventing serious abuses of human rights and fundamental freedoms". The Guide may assist companies in this situation.
Implementing enhanced due diligence may also support the prevention and management of other risks that are multiplied in a context of armed conflict, in particular legal, financial and reputational.
Lastly, understanding soft law instruments and choosing to incorporate them enables companies to implement recommendations that may be the precursors of future legislative developments at a pace that suits them. The OECD guide on conflict minerals was a major source of inspiration for the European regulation on the import of minerals from conflict-affected and high-risk areas, as were the United Nations Guiding Principles for France’s law on the duty of vigilance.
The measures recommended by the Guide therefore provide companies faced with armed conflict with a compass that could prove welcome.
When is heightened due diligence required?
The Programme has designed its Guide with a view to supporting companies faced not only with traditional situations of armed conflict, but also with contexts of "widespread violence" and "post-conflict situations". This is a relevant position, given the similarities in the challenges faced in these various contexts.
In addition, the Guide uses its conflict expertise to encourage companies to take account of the signals that can precede a situation of violence or armed conflict. Among these signals, which should alert companies to the likelihood of violence, the Guide lists events such as:
the declaration of a state of emergency;
an increase in hate speech targeting specific groups;
the repeated appearance of paramilitary groups in public;
and the displacement of people within the country.
While these signals may seem to be the monopoly of fragile contexts to which it might seem superfluous to devote attention in the absence of conflict, the unpredictable nature of conflict, combined with ongoing developments in Europe, the Indo-Pacific, the Sahel and the Horn of Africa, justify incorporating them into the risk management processes of companies operating in a growing number of territories.
A four-steps process
Reflecting the Guiding Principles, the Guide's recommendations are based on four stages:
identification and assessment;
implementation of measures;
tracking the effectiveness of the measures taken; and
and communicating on how risks and impacts have been managed.
Identifying and assessing
Identifying and assessing actual and potential conflicts and their potential impact on human rights is the first pillar on which the Guide bases its heightened due diligence. In particular, it invites companies to examine and understand the dynamics of conflict. To this end, it suggests a series of questions for companies to explore along five lines:
the context;
the parties to the conflict;
the causes of the conflict, both immediate and structural;
recent developments in the conflict;
the use made of social networks.
As well as helping companies to understand the conflict, the main aim of the Guide is to help them understand the impact their operations may have on it. To this end, the Guide is based on the recommendations of the OECD Guide on Due Diligence for Responsible Business Conduct and invites companies to build their action plan on the basis of their answers to a series of three questions:
Is there an actual or potential adverse impact on human rights or the conflict connected either to the company’s activities (actions or omissions), products or services?
If so, do the company’s activities (including actions or omissions) increase the risk of that impact?
If so, would the company’s activities (including actions or omissions) in and of themselves be sufficient to result in that impact?
The answers to this series of questions will serve as a framework for outlining the measures the company may be expected to implement, by determining whether it is "directly linked" to the negative impact, "contributes” to it or "causes” it.
Implementing remedying measures
Mirroring the Guiding Principles, and in particular Guiding Principle 19, the Guide bases the level of action that a company should take on the impact it may have on the conflict, depending on whether it has a "direct link" with, “contributes” to, or “causes” the "negative impact".
A company that is "directly linked to the negative impact" will have to identify a way of using its influence to promote an alternative to violence. To understand the influence a company may exert, it may turn to the Interpretative Guide to the Guiding Principles, which provides an exhaustive description.
The second level of involvement would be that of a company “contributing” to the negative impact. For its part, it would be obliged to take measures aimed at, and to use its influence to stop its contribution. To achieve this, the Guide recommends coordination between international companies and with the parties involved in the conflict.
The third and final level of involvement would be that of a company that " causes, or may cause, an adverse human rights impact". The company would then be required “to take appropriate measures to cease or, prevent, and remedy the impact”.
Finally, like the Guiding Principles, the Guide invites companies to organise their actions so as to prioritise remedying the most significant impacts, determined on the basis of three factors: scope, scale and irremediability.
Companies will not be able to rely on the Guide to determine which measures should be adopted, a reservation that is understandable given the specific nature of each situation, and that we have become accustomed to seeing in instruments promoting a risk-based approach. However, this latitude is likely to give rise to profound differences of interpretation.
While the Guide does not provide guidance on the measures that companies can implement, it does provide practical recommendations to increase their chances of success, some of which may prove useful to companies that are not in a position to seek support from dedicated advisors. These include informing all staff of the mitigation measures implemented, taking into account the ethnic, religious, social and political diversity of the region, and maintaining a dialogue with stakeholders.
Tracking the effectiveness of measures and processes
The Guide stresses the importance of monitoring the measures implemented by the company. This monitoring will be based on indicators designed by the company, which will make it possible to assess the efforts made and any improvements required.
This monitoring will also have the role of archiving all the considerations that have informed the company's decisions.
Communicating
Finally, the Guide puts the emphasis on communication, which it encourages companies to implement. The aim is to communicate with stakeholders, as well as shareholders and civil society, using formats that are accessible to everyone. The Guide therefore invites companies to take account of potential communication barriers linked to literacy, language or infrastructure.
Additional recommendations
In support of the four pillars that form the basis of its approach - identification and assessment, action, monitoring and communication - the Guide provides a set of recommendations designed, it seems, to increase the chances of success. Companies are thus invited to engage stakeholders, implement grievance mechanisms and strengthen their institutional capacities.
Heightened due diligence to prevent other risks arising from operations in sensitive areas
The heightened due diligence recommended by the Guide will prove invaluable for companies operating in a sensitive context.
For companies that fall within the scope of the Duty of Vigilance Act, drawing on enhanced due diligence can be a valuable asset, not only for complying with their obligations, but also for making compliance public and facilitating communication with stakeholders such as associations and other observers.
Drawing on heightened due diligence may also support the risk prevention and management policy, particularly with regards to legal risks, implemented by companies operating in conflict-sensitive areas. However, it is essential not to lose sight of the purpose of the Guide, which is to protect human rights. The measures it recommends cannot therefore be considered sufficient to preserve the legal and financial integrity of companies faced with the challenge of armed conflict.
Conclusion
As when companies were required to integrate their impact on human rights, the leap the Guide recommends to companies operating in sensitive areas is significant.
However, the most notable contribution, and perhaps even the raison d'être of the Guide, probably lies in the understanding it encourages companies to develop of conflict and the dynamics that accompany it, and which will require the development of expertise.
Finally, while the Guide provides valuable guidance for companies operating in sensitive areas, it should not obscure the fact that this context poses other risks, particularly legal risks, in addition to that of impacting human rights. The measures it recommends cannot therefore be the alpha and omega of a robust strategy for operating in sensitive areas. `