EJIL: Debate!

• Bonnitcha, Jonathan 1
• McCorquodale, Robert 2

Abstract

Due diligence is at the heart of the United Nations Guiding Principles on Business and Human Rights, which establish the main parameters internationally for considering corporate responsibility for human rights violations. However, the Guiding Principles invoke two different concepts of due diligence: the first is a process to manage business risks and the second is the standard of conduct required to discharge an obligation. In this article, we show that the Guiding Principles invoke these two concepts without explaining how they relate to each other. This confusion creates uncertainty about the extent of businesses’ responsibility to respect human rights and uncertainty about how that responsibility relates to businesses’ correlative responsibility to provide a remedy when they infringe human rights. On this basis, we propose and justify an interpretation of the Guiding Principles that clarifies the relationship between the two concepts of due diligence.

• 1Lecturer in Law, University of New South Wales, Sydney, Australia. Email: j.bonnitcha@unsw.edu.au. The authors would like to thank Ali Khan, Gillian McCall and Lise Smit for all their research assistance in the preparation of this article. The authors would also like to thank David Jason Karp, Stephen Young, participants in the workshop ‘500 Days after Ruggie’ at the London School of Economics, and two anonymous reviewers for their helpful comments on earlier drafts of this article.
• 2Director, British Institute of International and Comparative Law; Professor of International Law and Human Rights, University of Nottingham, and Barrister, Brick Court Chambers, London, United Kingdom. Email: r.mccorquodale@biicl.org.