The concept of a “safe harbour” and mandatory human rights due diligence
CEDIS Working Paper VARIA n.º 1 dezembro 2020
Recent developments across Europe on national as well as European level propose the introduction of corporate liability for mandatory human rights and environmental due diligence (“mHREDD”) regulations. As part of these discussions, the concept of a “safe harbour” against liability has surfaced in various contexts. Examples include:
- During 2019, the idea of a “safe harbour” was mentioned by stakeholders in the context of European legislation, including during interviews as part of the Study on due diligence requirements through the supply chain for the European Commission on Due Diligence (“EC study”). Subsequently, “safe harbour” continued to be mentioned in discussions around the EU legislative initiative on mandatory human rights and environmental due diligence (“mHREDD”).
- In 2020, an unofficial publication in Germany of Draft Key Points of a Federal law on strengthening corporate due diligence to prevent human rights violations in global value chains (Due Diligence Act) (hereafter “German Draft Key Points”)included a reference to a “safe harbour” exemption, which would be linked to officially recognised multi-stakeholder industry standards, and exclude civil liability except in cases alleging intent or gross negligence.
- Also in 2020, the International Organisation of Employers mentioned the lack of a “safe harbour” clause in the Second Revised Draft Treaty in a position paper published on 7 October 2020.
- During the 2020 UN Forum on Business and Human Rights, the safe harbour concept was mentioned in a panel discussion on the topic of “Mandatory Human Rights Due Diligence: building out the key components of effective legislation”.
There is accordingly a need to consider what is meant by a “safe harbour” in this context, and how this concept interacts with the concept of mHREDD.