The Race to Legislate: Reconciling the Right to Development with Principles of Sustainable Development

By Harper Edhels, April 2021

Current State of Play

Multinational corporations have an indispensable opportunity to harness the power of their global supply chains as forces for good.[1] And just as collective action is a critical tool to rally momentum for change, so must governments and international institutions play their part by providing the framework to make change a reality.

The UN Sustainable Development Goals (SDGs) adopted in 2015 as part of the 2030 Agenda for Sustainable Development were an important landmark on this journey.[2] The shared goals represented a shared vision towards peace and prosperity by recognising that global development is only desirable if it also protects fundamental freedoms and the environment.

The Right to Development

The Covenant for Economic, Social & Cultural Rights establishes that all peoples have a right to economic development[3], later qualified by the Declaration on the Right to Development.[4] It makes clear that development should improve the wellbeing of the entire population and all individuals, with benefits distributed fairly throughout.

Most saliently, it highlights that development should only be promoted where it also gives equal consideration to other human rights and fundamental freedoms. In addition to laying out the right, it prescribes a responsibility to “promote and protect an appropriate political, social and economic order for development”.

So how can legislation help us promote such a global order? It must reconcile the right of parties to pursue development with their responsibility to protect the fundamental freedoms of individuals that are affected by their operations.

Status of Legislation

Legislation to transition to a more just global economic order, with business obligations at its heart, has been burgeoning for several years. When the California Transparency in Supply Chains Act 2010 emerged,[5][6] followed by the UK Modern Slavery Act 2015,[7] they were revered as game-changing pieces of legislation that promoted private sector transparency and accountability. Businesses in scope were required to report annually on any steps they were taking to eradicate modern slavery from their value chains. But taking this legislation at face value, companies were completely within their obligations if they took no such steps at all, as long as they reported as such.

Despite making bold movements to put business transparency on the legislative map, these open-ended laws left much up to the discretion of each company and so fell short of true accountability.

Developing Landscape

But the state of play is changing: at varying levels of the international arena institutions are recognising that mandatory due diligence for businesses, not just mandatory disclosures, is essential to achieve true accountability. This means moving from transparency to action - as transparency means little without a solid foundation of good business practice to underpin what is being disclosed.

UN Treaty negotiations are ongoing to discuss reforms to human rights obligations imposed on businesses at the international level. Although no clear reforms have yet been agreed, the parties’ shared goal of ‘mainstreaming corporate due diligence’ to do justice to the people and communities affected by international trade is within sight.[8]

Simultaneously, the EU is deep into its own drafting process. EU legislation that will require companies to identify, prevent and address their human rights and environmental risks throughout their value chains is due to be published in June 2021, with all violations eligible for redress through EU courts to ensure companies are held to account.[9]

Zoom in one layer deeper to the national level: some laws, like the French Duty of Vigilance Law 2017, have been in place for just long enough to be beginning to make their mark on the private sector.[10] The law has already been used to bring several cases against multinationals, including 2 against Total for failure to effectively address the climate and human rights risks resulting from their operations.[11]

The German government is eagerly following suit, having agreed in February 2021 to a draft supply chain law which will impose a duty of care on the country’s largest companies to identify, mitigate and prevent risks that arise from their business operations.[12]

Existing legislation is now scrambling so as not to be left behind; after a 2019 independent review, the UK is reforming the MSA 2015 to strengthen the law and mandate topics that companies must report on, including supply chain due diligence and remediation of key supply chain risks.[13]

The legislative landscape is making an earnest attempt to catch up with the moral obligations of multinational giants whose development has run away with them. If successful, legislation which holds businesses to account and brings their actions into line with the principles of the UNSDGs will go some way to reconcile the right to development with individual freedoms.

Conclusion

Mandatory due diligence is a welcome actor on the global stage. Bringing about accountability and mandatory due diligence for some of the most powerful actors in the international arena is essential to ensure that global prosperity leaves no one behind.

[1] https://www.climatejustcollective.co.uk/the-transnational-revolution?rq=transnational

[2] https://sdgs.un.org/goals

[3]https://www.ohchr.org/EN/ProfessionalInterest/Pages/CESCR.aspx

[4]https://www.ohchr.org/en/professionalinterest/pages/righttodevelopment.aspx#:~:text=The%20right%20to%20development%20is%20an%20inalienable%20human%20right%20by,freedoms%20can%20be%20fully%20realized

[5]https://oag.ca.gov/SB657

[6]https://oag.ca.gov/sites/all/files/agweb/pdfs/sb657/resource-guide.pdf

[7]https://www.legislation.gov.uk/ukpga/2015/30/contents/enacted

[8]https://corporatejustice.org/news/16849-un-treaty-negotiations-conclude-without-clear-negotiated-reforms-but-expectations-for-next-year-remain-high

[9]https://corporatejustice.org/news/16870-over-half-a-million-people-across-the-globe-tell-the-eu-to-hold-business-accountable

[10]https://www.business-humanrights.org/en/blog/what-lessons-does-frances-duty-of-vigilance-law-have-for-other-national-initiatives/

[11]https://www.business-humanrights.org/en/latest-news/6-ngos-file-lawsuit-against-total-over-alleged-failure-to-respect-french-duty-of-vigilance-law-in-its-operations-in-uganda/

[12]https://www.business-humanrights.org/en/latest-news/german-due-diligence-law/

[13]https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/803406/Independent_review_of_the_Modern_Slavery_Act_-_final_report.pdf