The French Attempt to Legalize Human Rights Due Diligence: Is France leading the European Union in Business and Human Rights?
Abstract: This thesis is a comprehensive analysis of the different regulatory designs and arguments shaping French law in order to hold French businesses liable for their human rights abuses occurring in global supply chains. It focuses on the innovative law proposal on the duty of vigilance for parent and ordering companies currently debated within the French Parliament, and France’s potential to make human rights due diligence mandatory at the domestic and at the European Union (EU) level. The thesis starts by recalling that there is a growing demand for regulating businesses at the international level and at the national level in France. There is a need for implementing the United Nations Guiding Principles on business and human rights (UNGP), and overcoming the international and domestic legal barriers that prevent companies to be held liable for their subsidiaries’ and subcontractors’ human rights abuses. Thus, the proposal on the duty of vigilance carries France’s ambitions of making human rights due diligence a binding obligation for French and European businesses, and improving access to remedies for victims of business-related human rights abuses in France and abroad. Thanks to this innovative legal initiative, France is also expecting to become a leader for the European Union in business and human rights. To assess France’s potential to meet these ambitions, the thesis analyses the French regulatory framework applicable to business groups and networks impacting on human rights. It demonstrates that, although they are various mechanisms under different bodies of law that already exist to hold French businesses liable for the negative impacts on human rights and the environment resulting from their subsidiaries’ and subcontractors’ activities, they are too restricted to cover all human rights abuses and all actors within global supply chains. Therefore, the proposal on the duty of vigilance tries to fill the gaps of the current regulatory framework by creating a holistic human rights due diligence obligation on the part of parent and ordering companies. Despite a slow genesis within a divided Parliament, the last version of the proposal has been the product of a compromise between the interests of businesses and victims of business related-human rights abuses. The extraterritorial and wide material scope of application of the duty of vigilance is a real improvement in victims’ access to remedies, while its restricted personal scope of application and the fault-based liability with the burden of proof on the claimant limit the practical effects of these improvements. Thus, the law proposal has been heavily criticized from a legal perspective. Although the recourse to hard law to regulate businesses has been welcome by some lawyers, the proposal was deemed too risky and limited in meeting its objectives. However, for the supporters of the proposal, the compromised framework of the duty of vigilance is necessary to ensure the adoption of the law proposal by both chambers of the Parliament, and advance businesses’ respect for human rights. The thesis will then analyse France’s potential to meet its other ambitions to set up an EU standard on duty of vigilance, and to lead the EU in business and human rights. France has already proven to be a model in implementing the EU directives on public procurement and in being the forerunner of the EU directive on non-financial reporting. Furthermore, France is intensifying its lobbying efforts for mandatory due diligence within the EU. Although there is currently no strong political will from EU institutions and other EU Member States for legalising human rights due diligence, Danielle Auroi (the Rapporteur of the proposal in the first reading at the National Assembly) gathered support from three national parliaments and five national parliamentary chambers to launch a Green Card on mandatory due diligence to the European Commission.
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