The Due Diligence Standard and the Prevention of Racism and Discrimination

Abstract

The due diligence standard has played a significant role in preventing human rights violations, including racial discrimination. Yet, it is significantly articulated in neutral terms, often failing to grasp the specificities of violations of this type. Moreover, the positive structural impact that due diligence can produce is still subject to debate and is approached with reluctance by human rights courts and monitoring bodies. The principle of substantive (racial) equality has considerably contributed to improving the law on racial discrimination, but with limited impact on collective or structural claims. In the wake of new social events demanding responses to racism beyond the classical individual perspective, it makes it necessary to inquire whether, or to what extent, this standard can play a role in enhancing such structural responses by international human rights law. This article aims to analyze the main components of the due diligence standard (the preventive limb) to assess the relevant shortcomings, and to propose ways forward in order to enhance a structural perspective in racial discrimination.