Discretion, Divergence, Paradox: Public and Private Supply Chain Standards on Human Rights

Abstract

Expectations on businesses to manage supply chain human rights risks are becoming increasingly more detailed, demanding and widespread. In response to new legislation and official guidance, corporations have established human rights policies and detailed performance standards for their suppliers that take legal form via incorporation into purchase contracts. In contrast, public buyers’ supply chain responsibilities for human rights have so far scarcely been addressed, notwithstanding increasing concerns about the human rights impacts of public purchasing. Following the introduction, which demonstrates the paradoxical character of this divergence, this chapter reviews relevant developments in law, policy and practice and considers their future implications. Section 2 analyses the framework of norms applicable to purchasing by public and private actors linked to human rights abuses as understood from the perspective of international human rights law. Section 3 illustrates how, in contrast, public buyers’ discretion to promote the achievement of social objectives has conventionally been construed from the standpoint of EU public procurement law, namely as an exceptional derogation from the logic of competition. Section 4 surveys new supply chain standards, demonstrating a growing discrepancy between conduct expected of corporations and public buyers as regards human rights due diligence. Section 5 concludes.