Why rightsholder consultation is the gateway to effective human rights due diligence

By Dr. Matthew Mullen, Article 30

July 31, 2020

The best and only way to understand corporate human rights risks is to understand the perspectives of rightsholders who experience them, argues Matthew Mullen.

On 29 April 2020, the European Commissioner of Justice, Didier Reynders, announced that the European Union will propose new mandatory human rights due diligence legislation in 2021.

This announcement has the field imaging the possibilities. Human rights due diligence (HRDD) in the EU and beyond is the medium to achieve "tangible results for affected individuals and communities", as the UN Guiding Principles on Business and Human Rights call for.

However, there is a fateful difference between due diligence that manages the impact of human rights on a business enterprise and due diligence that effectively governs a business enterprise’s impact on human rights. The differentiator, the gateway to effective HRDD is rightsholder consultation.

Rightsholder consultation as the gateway to human rights outcomes

Decades of human rights practice have given the blueprint for how to achieve human rights outcomes. It begins and ends with rightsholder consultation. Rightsholder consultation is the bedrock of a human rights-based approach because results happen through rightsholders rather than to them.

From the earliest stage, rightsholder consultation enables affected individuals to guide the trajectory of HRDD. The best and only way to properly understand corporate human rights risks is to understand the qualitative perspectives of rightsholders who experience them. Issues may surface that would otherwise go unseen or under-estimated. After properly diagnosing risks, the task becomes managing them. Do efforts build upon and support the self-protection strategies that these rightsholders employ? Rightsholder consultation ensures that responses are fit to context and provide individuals with the type of support they need, that will actually mitigate and prevent harm, and produce positive human rights outcomes. If rightsholders are treated as bystanders, what begins as a genuine attempt to manage human rights risks and impact can actually leave rightsholders dislocated and further marginalized.

When done properly, rightsholder consultation changes the game from corporate checklists and faceless risks to qualitative rightsholder experiences and real-world human relations. There is no cookie-cutter way of accomplishing this. Things have to be tailored to circumstances, which only rightsholders fully understand. Through their lived experiences, they have the insights into how to effectively close accountability gaps and confront threats. At every stage of HRDD, rightsholder consultation is the difference between entrenching or closing the gap between corporate prerogatives and the agency of rightsholders. Rightsholder consultation is a metric that can tell stakeholders a lot about whether a business enterprise is serious about managing their impact on human rights.

Connecting Purpose and Process

Two meta-studies by Article 30 on the human rights disclosure of publicly listed companies in Southeast Asia, Human Rights Disclosure in ASEAN and  The Current Use of Metrics in Company Human Rights Reporting in Southeast Asia,  reveal how rare rightsholder consultation may be. Only 16% of 250 companies exhibited any indication of stakeholder engagement, which is a notably lesser metric than meaningful rightsholder consultation. Stakeholder engagement regularly excludes the human rights actor that matters most: affected rightsholders. One need not look far to find a company that is celebrating their ongoing HRDD, but has yet to initiate any rightsholder consultation. Pertinently, a recently released decade long study by MSIntegrity found: "Multistakeholder Initiatives are not effective tools for holding corporations accountable for abuses, protecting rights holders against human rights violations, or providing survivors and victims with access to remedy" in part because they "have largely excluded rights holders from their governing bodies and implementation."

The current state is one where managerialism-based HRDD is the norm and human rights-based due diligence is the exception. Rajiv Maher explains that the "managerialist perspective places its hope and trust firmly in the power of corporations to push and pull certain levers and controls to manage their human rights impacts." The prevalence of managerialism can be seen in the proliferation of top-down, input-process-output-based theories of change, narrow thinking on legal liability, and corporate benchmarks that reduce corporate respect for human rights into a list of boxes to tick. From a human rights perspective, the problem is that managerialistic HRDD can readily delve into rights-washing and normalize ineffective practices. Meaningful rightsholder consultation disrupts control and enables affected rightsholders to influence the agenda and become agents of their own well-being, which is how tangible results on human rights come about.