Kriittinen arviointi ihmisoikeuksia koskevan asianmukaisen huolellisuuden käsitteestä sitovien velvoitteiden aikakaudella

In the past few decades the intersection of business and human rights has drawn the attention of regulators at the United Nations, within national legal systems and of the European Union. A significant turning point in this development was the United Nations Guiding Principles on Business and Human Rights (UNGPs) developed by John Ruggie, the former UN Secretary-General's Special Representative on human rights and transnational corporations and other business enterprises. The second pillar of these principles, the corporate responsibility to respect human rights, is built around the concept of human rights due diligence (HRDD). Since the adoption of the UNGPs, HRDD has come to define the discussion in the field of business and human rights, and it has been the basis for legislative initiatives in countries like France, Norway, and Germany, with the EU following suit. Indeed, corporations’ adverse human rights impacts in value chains is to a large extent going to be regulated through the process of HRDD. The widespread adoption of this concept calls for research into its theoretical foundations, content, and its effects. The research question is as follows: ‘Is the human rights due diligence process fit for purpose in preventing and mitigating corporate human rights abuses?’ The thesis delves into John Ruggie's theoretical assumptions on global governance and the theoretical and practical challenges related to HRDD. The findings are then mirrored against the adopted laws in Europe that set out mandatory HRDD obligations. The conclusion of the thesis is that there are significant ambiguities and structural weaknesses in the HRDD process, both as envisioned in the guiding principles and in the assessed European legislations. The process gives corporations powers traditionally vested to states and international organizations regarding the monitoring, enforcement and communication of human rights. The vague rules on the other hand leave corporations to operate in the confines of the so-called ‘business case’. Further, because HRDD regulates the process itself instead of mandating results, it allows for superficial or creative compliance. Common amongst the assessed Europeans legislations is that they do little to meaningfully engage affected stakeholders, which is crucial in designing an effective HRDD process. In the coming years the case law of courts and the practice of competent authorities will mend some of these weaknesses and clarify the ‘due’ in due diligence. However, HRDD obligations by themselves will not suffice. Indeed, the UNGPs call for a ‘smart mix of measures’ to tackle adverse human rights impacts resulting from corporate activity. Accordingly, a mix of regulatory initiatives has been attempted in the EU. One future solution could be addressing corporate human rights abuses through company law by changing the purpose of the corporation to one that encourages sustainable business