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8 BHRJ 1 (2023)

handle is hein.journals/bshurj8 and id is 1 raw text is: Business and Human Rights Journal (2023), 8, 1-17 doi:--'- SCHOLARLY ARTICLE Muddying the Waters: The Concept of a'Safe Harbour' in Understanding Human Rights Due Diligence Lise Smit , Claire Bright and Stuart Neely3 'British Institute of International and Comparative Law 2Nova University Lisbon Centre for Business, Human Rights and the Environment 3Norton Rose Fulbright *Corresponding author. Email: Abstract The concept of a 'safe harbour' has been mentioned in several contexts during ongoing discussions around regulatory developments towards mandatory human rights and environmental due diligence (mHREDD) which continue at international, European and national levels. This article analyses the concept of a 'safe harbour' and how it relates to human rights due diligence (HRDD) as described in the UN Guiding Principles on Business and Human Rights (UNGPs). It discusses examples of other types of safe harbours which were recognized in legislation and case law; considers that a safe harbour could result in a 'tick-box' approach; highlights the implications for access to remedy; and distinguishes a safe harbour exemption from a defence of having undertaken HRDD in accordance with an expected standard of conduct. Keywords: Civil liability; Due diligence defence; Mandatory due diligence; MHREDD; Safe harbour 1. Introduction Recently, important developments have taken place as an increasing number of mandatory human rights and environmental due diligence (mHREDD) laws and legislative proposals have been put forward in various jurisdictions in Europe and beyond,' 1 Lise Smit, Claire Bright, Robert McCorquodale, Matthias Bauer, Hanna Deringer, Daniela Baeza-Breinbauer, Francisca Torres-Cortds, Frank Alleweldt, Senda Kara and Camille Salinier and Hector Tejero Tobed for the European Commission DG Justice and Consumers, Study on Due Diligence Requirements Through the Supply Chain: Final Report (24 February 2020), 't .l/ ±rpaL//pubcation-detai/-paton/8ba fd4'31iea- b -a d/g -n~w m~cr (EC study); Chiara Macchi and Claire Bright, 'Hardening Soft Law: the Implementation of the UNGPs in Domestic Legislations', in Martina Buscemi, Nicole Lazzerini, Laura Magi and Deborah Russo (dir.), Legal Sources in Business and Human Rights - Evolving Dynamics in International and European Law (Brill, 2020), 218-247. © The Author(s), 2023. Published by Cambridge University Press.