Heightened Human Rights Due Diligence in Practice: Prohibiting or Facilitating Investment in Conflict Affected Areas?

Abstract

Companies operating or seeking to invest in conflict-affected areas are expected to carry out a heightened human rights due diligence (HRDD) process to identify, address and mitigate their impact on human rights and the conflict. The heightened HRDD process put forward in the UN Guiding Principles on Business and Human Rights and clarified by the UN Working Group constitutes best practice but raises questions regarding implementation. This article explains what heightened HRDD in conflict means in practice. It examines how heightened HRDD expands the business responsibility from identifying and mitigating the impact of its operations on human rights to the impact on the conflict itself. This article draws on lessons from Myanmar, where a military coup in February 2021 caused prominent businesses to leave the country. Would a heightened HRDD process have identified additional risks and discouraged initial investment? Or would it have legitimized investment with a public rights-based, conflict sensitive HRDD process that included a clear exit strategy?