THE IRRESISTIBLE RISE OF HUMAN RIGHTS DUE DILIGENCE: CONFLICT MINERALS AND BEYOND

Human rights due diligence (HRDD) is an important new concept in international efforts to improve the accountability of transnational corporations for violations of human rights. Due diligence has a clear meaning in corporate governance, setting out context-specific risk-management obligations for corporations.1 It also has been applied in a variety of contexts in international law, including international human rights law, to define the scope of state responsibility for the acts of non-state actors.2 HRDD applies international human rights standards to the acts of businesses in the international sphere.3 It is designed to provide guidance to corporations on how to avoid adverse impacts of business on human rights and how to remedy such adverse impacts.4HRDD was first described in detail in the Guiding Principles on Business and Human Rights (GP),5 adopted by the United Nations Human Rights Council in 2011.6 At the same time, the Organisation for Economic Co-operation and Development (OECD) was in the process of revising its Guidelines on Multinational Enterprises (MNE Guidelines) and incorporated the GP's approach to HRDD in the new human rights chapter of the MNE Guidelines.7 The OECD also adopted a model of due diligence similar to the GP's as a general policy in the MNE Guidelines.8The OECD has subsequently used the HRDD concept in developing sector-specific guidance for mining businesses in conflict and high-risk zones (OECD Guidance)9; in drafting this guidance, the OECD has further advanced the HRDD concept. The OECD has thereby contributed to a better understanding of HRDD and to its legitimacy as an international measure for improving business accountability.This Article begins in Part I with a review of the concept of due diligence in international law, examining its role in areas such as diplomatic protection, international environmental law, and human rights. Part II then examines how the Special Representative of the Secretary-General for Business and Human Rights, Professor John Ruggie, elaborated the concept of HRDD within the United Nations; it also examines how the OECD adopted HRDD. Part III focuses on how the OECD applied HRDD to international efforts to remove conflict minerals from supply chains, and Part IV discusses how the OECD model of HRDD for conflict minerals interacts with regulation under the Dodd-Frank Act. Part V elaborates on the implementation of these HRDD measures by the OECD. Finally, Part VI looks ahead to the OECD's w