Due Diligence Legislations – Remediation for Victims of Human Rights Violations
Global value chains represent an important source for economic growth, job opportunities and import of skills and technology. However, along with these benefits come complex challenges related to the protection of human and environmental rights. Transnational corporations can be directly responsible for human rights abuses, or they could be sourcing unethically produced products from suppliers in their value chains that violate human rights.
The rise in global value chains has highlighted the need to better safeguard human and environmental rights. With the introduction of human rights due diligence legislations, a new approach is taken to confront human rights violations by companies. While some research has been done on the emergence, scope and reach of due diligence legislations, what these legislations can provide in terms of access to remedy is still an under-explored topic. One of the three foundational pillars of the United Nations Guiding Principles on Business and Human Rights (UNGPs), remediation serves as a cornerstone of any approach which aims to address human rights violations by companies. While due diligence strives to identify, prevent and mitigate potential impacts on human rights, remediation seeks to bring these adverse impacts to an end and possibly enable restoration into a previous state.
The Concept of Remediation as a Cornerstone of Corporate Accountability
The concept of remediation plays a key role in the broader framework of human rights protection, referring to the right of individuals to access justice via judicial, administrative or other bodies in order to seek redress and proper ‘compensation’ for the harm done. According to the OECD Guidelines, practical actions carried out as remediation should be proportionate to the severity and scale of the adverse impacts. These actions can include restoration of the affected person or persons to the state prior to the occurrence of the adverse impact, as well as various forms of remedies such as apologies, restitution or rehabilitation, financial or non-financial compensation, punitive sanctions and preventative measures of reoccurrence, as dictated by an existing law or international guidelines. The victim’s ability to exercise their right to an effective remedy is dependent on two essential factors: the existence of mechanisms capable of delivering just redress and the accessibility of those mechanisms to victims. Consequently, the two duty bearers, states and non-state actors share the responsibility to ensure the realisation of the “right”: states have an obligation to establish effective remedial mechanisms, while business enterprises need to provide procedurally effective, tangible remedies to those who have received harm.
In response to the growing demand and pressure to take accountability for the human rights violations in their value chains, companies have increasingly adopted self-regulatory, voluntary due diligence measures, while the international organisations have developed a range of soft-law measures based on the concept of due diligence.
Legalisation of Soft Law Practices: The Evolving Landscape of Due Diligence and Remediation
The inherently broad and ambiguous nature of due diligence and remediation concepts allows states flexibility in their approaches to due diligence legislation. As a result, legal frameworks on corporate accountability vary widely in emphasis, at times focusing on human and labour rights and the principles of transparency, participation, and accountability, or prioritising corporate risk management and control of international corporate systems.
The UN Guiding Principles on Business and Human Rights (UNGPs) puts the responsibility to safeguard human rights and fundamental freedoms on all States and all business enterprises, regardless of their size, sector, location, ownership and structure. The OECD Guidelines for Responsible Business Conduct provide a more elaborate outline of diligence process steps, consisting of six interconnected elements. The guidelines call on businesses and corporations to organise their activities and operations in a manner that takes corporate responsibility and due diligence measures into consideration, safeguarding, at minimum, the basic human rights.
Despite these efforts, the voluntary approach towards dealing with human rights violations by companies is considered insufficient for adequately addressing human rights violations of companies. As a result, in the last decade several legislative measures emerged which transform the voluntary soft law guidelines into hard law obligations for companies. This shift from soft law practices towards legally binding framework reflects the diminishing support for the traditional division of responsibilities between the states and corporations in protection of human rights. The increasing expectation for businesses to address potential adverse human rights effects is now operationalized in a number of legislative measures, mainly in the European Union and its Member States.
Remediation Measures Across Due Diligence Legislations
Remedy provisions vary significantly in their design across the already enforced or proposed legislations, with some frameworks incorporating forms of restitution, compensation, or satisfaction— either individually or in combination. While different occurrences of human rights violations may call for different, proportional remedies, restitution clearly stands on top in the hierarchy of modes of remediation. It is the primary mechanism to “make good” on violations, since compensation and satisfaction measures, such as financial redress or formal apologies usually come into play only when restitution is not possible or insufficient. A truly effective remedy should be capable of either preventing the alleged violation or its continuation or providing redress for the occurred violation. Simply imposing a fine on a business enterprise does not guarantee that the human rights abuses from the company will cease, not does it provide victims with effective justice for violations they have endured.
However, the use of restitution as the primary remediation mechanism is rather rare. Practical disadvantages such as the passage of time make restitution to a prior state difficult or impossible. Therefore, in real life application, restitution is not envisioned as a singular remediation mechanism in any of the legislative documents. Instead, the majority resort to the provision of remedial relief through combining different remediation categories or only mandating remedial action belonging solely to either compensation or satisfaction categories.
Pioneer in due diligence legislations, the French Vigilance Law has a large, profound capacity to force companies to include due diligence provisions in their business models and practices. However, the legislation provides remediation through compensation only and places the burned of proof on the victim. Due to these judicial barriers, remedial measures of this legislation have not been activated to this day, making it difficult to say how effective and practically enforceable the legislation really is.
The victims of human rights violations often seek more from justice than mere financial restitution. In this respect, the Norwegian Transparency Act and the EU CSDDD are the most comprehensive in terms of incorporating a larger variety of remedies, combining restitution, compensation and satisfaction measures. The Norwegian legislation may be a notable step forward with its commitments to transparency, access to information, director-level responsibility, and adherence to international standards such as the UNGPs and the OECD Guidelines, but it still lacks provisions on civil liability and does not permit the victims to exercise their right to take legal action against the violating companies.
On the other hand, the EU Directive on Corporate Sustainability Due Diligence (CSDDD) demonstrates an important shift towards hard law. With its large scope of legal application, the document puts an obligation on major EU and non-EU enterprises operating in the EU market to implement sustainability due diligence commitments throughout the company’s business own operations as well as in their supply chain. The effectiveness of the document is further increased by the inclusion of a strong enforcement mechanism, including a range of rigorous sanctions for violations. Contrasting the Norwegian act, the CSDDD puts forth the burden on states to ensure access to justice for the victims in order to exercise their right to an effective remedy.
Effective Remedy in Corporate Due Diligence: the Future of Due Diligence Legislations
Simple existence of policies and directives for protecting human rights is not a sufficient guarantor that a violating corporation will provide redress to its victims. For these legislative initiatives to be effective in practice, grievance mechanisms for victims seeking remediation are necessary. A legislative document that incorporates a wide range of remedies allows for the victim to receive the most appropriate remedy depending on the circumstance, harm suffered and personal preference. A strong, diverse remediation mechanism coupled with a rigorous sanctioning regime should increase the effectiveness of the due diligence legislation in preventing and addressing human rights violations by companies. The legislative framework should serve both as a deterrent and as an incentive for the businesses to comply with due diligence requirements.
As the shift from “soft law” to “hard law” in due diligence instruments is still a relatively young process, it may be too early to accurately state whether this movement can truly impact the victims of human rights violations. Ultimately, for due diligence legislations to genuinely protect human, labour, and environmental rights, they need go beyond formal commitments. Even if the legislation includes a wider range of remedial measures, combining forms of “restitution”, “compensation” and “satisfaction”, there is still the challenge of accessing and obtaining the remedy itself. Without strong justice provisions, structural barriers, such as the power imbalance between the victims and the offenders, the burden of proof on the victim and other practical hurdles undermine the effectiveness of the legislation on safeguarding human, labour and environmental rights.
This article is based on the paper: Dzneladze, Elene & Marx, Axel. (2025). Human Rights Due Diligence and Access to Remedy - A comparative analysis of twenty-six due diligence laws and proposals. Revista de Direito Internacional. 22. 10.5102/rdi.v22i1.9788.
Elene Dzneladze is a Georgian alumna of the Postgraduate Certification Programme in Korean Studies at KU Leuven. She also holds a Master of European Studies (MAES) from the same university with a master’s thesis on the topic of “The Role of International Actors in ‘Frozen Conflicts’ – The Case of EUMM Georgia in Abkhazia and Tskhinvali Region/“South Ossetia”. She has worked as a research assistant at the Leuven Centre for Global Governance Studies, as well as as an intern at KF-VUB Korea Chair, CSDS. Her research topics of interest include soft power and state resilience, cultural and trade diplomacy, peace and security, human rights, and EU foreign policy.
The opinions expressed in this blog are solely those of the author and do not reflect the views of EU-VALUES Network.