Human Rights Due Diligence and Invisible Subjects: Indigenous Peoples in the EUCSDDD

In the past few years, the European Union, in its strategy to promote a greener, more sustainable, and efficient economy, has approved several Regulations and Directives through which it has adopted certain social and/or environmental-related measures to promote its values beyond its borders. Sustainability requirements to be met by products and services imported into and produced in the region, carbon neutral policies, state-aid rules for promoting energy transition, among other instruments, are included in this framework. 

The Corporate Sustainability Due Diligence Directive (CSDDD) is one of this series of legal strategies – which, however, have been targeted by many commentators on their lack of attention to most vulnerable groups, being indigenous peoples one of these. Considering the current text of the Directive, this paper aims to briefly assess potential impacts that the lack of direct and clear mention to indigenous rights in the CSDDD may produce, and how companies, even when not facing such obligations, could pursue such engagement with indigenous peoples.

The adoption of the CSDDD: an important step in avoiding human rights and environmental violations 

This Directive entered into force on 25 July 2024 with the aim of incorporating due diligence requirements into certain companies operating in the European Union market and which are mainly characterized by being part of a complex and large global supply chain. The due diligence procedure should thus be performed by these companies to ensure that their products are produced in a sustainable manner, that is, to identify any potential risks of adverse impacts on human rights or on the environment. If such risks were to be found, the companies would have to take measures to end, mitigate, prevent, and remediate the adverse effects.

Because it is a Directive, the CSDDD needs to be transposed into Member States national legal systems by 26 July 2026. The measures, however, would be applied on companies only from 26 July 2027.

One of the key aspects of the Directive is the promotion of ‘meaningful engagement with stakeholders’, which correspond to a broad category of interested parties in the supply chain. This engagement is expected to take place in the initial stages of the due diligence procedure, when the company is gathering information to assess potential or actual adverse impacts of its activities, when developing responsive, corrective and remediation actions to address the risks, or when deciding to review its business relationships.

When defining the stakeholders, however, the Directive missed the opportunity to make a direct reference to the interests of indigenous peoples, which are only mentioned in the recitals of the Directive. Moreover, when listing ‘rights and prohibitions included in international human rights instruments’ that should be considered in the due diligence procedure, as present in one of its Annexes, the Directive was also silent in mentioning the United Nations Declaration on the Rights of Indigenous Peoples.

The State of Play: how the CSDDD missed the opportunity of addressing indigenous peoples’ rights

When describing what could be an ‘adverse human rights impact’, resulting from a company or group of companies’ activities, the CSDD defines it as:

an impact on persons resulting from: (i) an abuse of one of the human rights listed in Part 1, Section 1, of the Annex to this Directive (…); (ii) an abuse of a human right not listed in Part 1, Section 1, of the Annex to this Directive, but enshrined in the human rights instruments listed in Part 1, Section 2, of the Annex to this Directive, provided that:

- the human right can be abused by a company or legal entity;

- the human right abuse directly impairs a legal interest protected in the human rights instruments listed in Part 1, Section 2, of the Annex to this Directive, and

- the company could have reasonably foreseen the risk that such human right be affected taking into account the circumstances of the specific case, including the nature and extent of the company’s business operations and its chain of activities, the characteristics of the economic sector and the geographical and operational context;

The ‘human rights’ instruments listed in the Annex make direct reference, for instance, to the Convention on the Rights of the Child and to the International Labour Organization’s core/fundamental conventions. In these instruments, however, no direct reference is found to indigenous peoples.

The only reference to indigenous peoples’ rights is made in Recitals 33 and 65. Recital 33 recalls that, in certain circumstances, companies may need to consider additional standards, which may include those applicable to the rights of indigenous peoples, as protected under the UN Declaration on the Rights of Indigenous Peoples.

Moreover, Recital 65 states that companies should ‘take appropriate measures to carry out effective engagement with stakeholders’, including by taking into consideration the specificities of certain groups, such as indigenous peoples.

The Directive, therefore, mentions indigenous peoples, but only limited to its Recitals, with no clear directions on how companies are expected to engage with these peoples, or take into account their specific rights and special needs, which include an increased vulnerability to harms produced to the environment and fragile systems to access justice. Therefore, the Directive also missed the opportunity of making a direct link between adverse impacts on the environment and the protection of indigenous rights.

Why a specific approach to indigenous peoples’ rights?

Indigenous peoples, since the very first European corporate crusades in Asia and America, were victims of the destruction and occupation of their land, contamination by new diseases, enslavement, and attempts to erase their knowledge and culture. Nowadays, the destruction of indigenous peoples’ natural resources is still advanced by activities performed by or ordered by companies incorporated in the Global North, which may take advantage from weak justice systems and policies to address violations to local communities’ rights.

As an illustration, in 2020, a group of indigenous leaders from Peru filed a complaint against PlusPetrol, a Dutch company headquartered in Amsterdam, with the National Contact Point for the OECD guidelines in the Netherlands. According to the Complaint, the oil company was responsible for a series of environmental pollution and human rights violations, resulting from toxic waste water and oil spills.

While tragically harmed or threatened by the advance of industrial development and global trade, indigenous peoples can contribute significantly to address climate change and environmental destruction issues. This stems from their long-lasting agricultural practices, more resilient to extreme phenomenon, biodiversity conservation practices, and promotion of mitigation and adaptation measures in already affected areas.

To perform this role, however, indigenous peoples, due to their historical exclusion from public participation, access to justice and public policy instruments, and lack of resources, need extra incentives to promote a level playing field with large corporations that still occupy their lands or enrich through their resources.

The European Union recognized the specific needs of indigenous peoples when it supported the adoption of the UNDRIP, in 2007, and when some Member States ratified the ILO Convention No. 169 (Indigenous and Tribal Peoples Convention, 1989), such as Spain and Denmark.

The CSDDD, however, as described, does not provide indigenous peoples with a direct and clear support to directly engage with companies during all phases and levels of the supply chain. Moreover, the Directive does not provide a direct link between adverse impacts caused to the environment and consequential harms to local indigenous peoples, who are highly dependent on natural resources to survive.

It must be emphasized that the CSDDD is a significant achievement in the promotion of a human rights and environmental approach to large companies’ operations, reducing a long-standing feeling that companies could still be protected from accountability when operating in countries with less-stringent regulations. Nevertheless, the Directive still carries in its design the structure of a traditional ‘Global North regulation’, with no or limit consideration for the needs and specificities of the peoples from the Global South.

Amidst this silence, a possible voice for reaction? 

Despite the lack of explicit mention to specific indigenous peoples’ rights in the CSDDD, companies operating in countries with traditional communities cannot ignore that their activities need to consider these peoples’ rights, and an explicit change to the Directive is not necessary to promote this objective.

Large companies, especially those operating through a large and complex global supply chain, usually provide consumers and authorities with ‘ESG (Environmental, Social, and Governance) reports’. These reports, if including a clear description of the engagement with indigenous peoples, may be useful for promoting awareness with consumers, investors, and regulatory bodies, while diffusing ethical and transparent practices to be promoted by other companies operating in close connections with these peoples.

Furthermore, the European Union Member States still need to transpose the Directive in their national legislation. When doing this, Member States are allowed to go further than the CSDDD by being ‘more specific in terms of the objective or the field covered, in order to achieve a different level of protection of human, employment and social rights, the environment or the climate’. A direct and specific reference to indigenous rights, therefore, could be included.

Finally, collaboration with third countries where companies operate to attend the European Union market, including through subsidiaries, is fundamental. Cooperation is essential to promote the strengthening of still developing justice systems and public policies to empower indigenous peoples to advocate for their rights and claim remediation of past and current harms caused by large corporations.

Conclusion

The CSDDD, indeed, represents a significant switch in the status quo of companies, sending them the message that human rights violations and environmental harms caused by transnational activities are also submitted to accountability, even when taking place in different jurisdictions. As we demonstrated, however, the Directive still reproduces a ‘Global North’ view of human rights, in which Global South peoples’ voices are hardly listened to.

Nevertheless, the adoption of the CSDDD and the delivery of its message to all stakeholders creates a great opportunity for actions to be taken by the private sector, Member States, and social organizations around the world.

Finally, the CSDDD, especially in its flaws, may inspire other jurisdictions to adopt similar, but improved, due diligence legislation, especially where most of these activities take place and where indigenous peoples are situated. Indeed, through such actions, indigenous peoples’ may find a safe space for claiming respect for their rights and reparation for past damages.

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Reference List

¹ Directive (EU) 2024/1760 of the European Parliament and of the Council of 13 June 2024 on corporate sustainability due diligence and amending Directive (EU) 2019/1937 and Regulation (EU) 2023/2859 [2024] OJ L 1760, 5.7.2024.

² This include both European and non-European companies. See Ibid., Article 2.

Ibid., Article 5.

³Ibid., Article 5.

⁴Ibid., Article 37.

⁵These include the company’s employees, subsidiaries’ employees, trade unions, consumers, communities, civil society organisations, among others. Ibid., Article 3.

⁶Ibid., Article 13(3).

⁷Ibid., Annex 1, Part 1.

⁸ Ibid., Article 3(1)(c).

⁹Ibid., Annex 1, Part 1.

¹⁰ Directive (EU) 2024/1760 of the European Parliament and of the Council of 13 June 2024 on corporate sustainability due diligence and amending Directive (EU) 2019/1937 and Regulation (EU) 2023/2859 [2024] OJ L 1760, 5.7.2024, Recital 33.

¹¹Ibid., Recital 65.

¹² https://www.wearehumanlevel.com/content-hub/indigenous-rights-and-csddd

¹³ 1. Dhont F, Kiernan B. Genocide in the Spice Islands: The Dutch East India Company and the Destruction of the Banda Archipelago Civilisation in 1621. In: Blackhawk N, Kiernan B, Madley B, Taylor R, eds. The Cambridge World History of Genocide. The Cambridge World History of Genocide. Cambridge University Press; 2023:186-214; Meuwese, M.  (2020, May 29). Dutch-Indigenous Relations in the Atlantic World.

¹⁴ Oxford Research Encyclopedia of Latin American History. Retrieved 19 May. 2025, from https://oxfordre.com/latinamericanhistory/view/10.1093/acrefore/9780199366439.001.0001/acrefore-9780199366439-e-681.

¹⁵ Morgae Thorens, Nadia Bernaz, Otto Hospes, ‘Advocating for the EU Corporate Sustainability Due Diligence Directive Against the Odds: Strategies and Legitimation’ (2025) 63(2) Journal of Common Market Studies 606-623.

¹⁶ OECD Guidelines for Multinational Enterprises, ‘Indigenous Federations from Peru et al. vs PlusPetrol Resources Corporation B.V.’ – Initial Assessment (20 April 2021), < https://www.oecdguidelines.nl/binaries/oecd-guidelines/documenten/publication/2021/04/20/ia-indigenous-feds-peru-vs-pluspetrol/210420+IA+Indigenous+Feds+vs.+Pluspetrol.pdf> accessed 19 May 2025

¹⁷ ILO, ‘Indigenous peoples and climate change: from victims to change agents through decent work’ (ILO 2017).

¹⁸Ibid.

¹⁹ United Nations, ‘United Nations Declaration on the Rights of Indigenous Peoples: resolution / adopted by the General Assembly’ 2007 <https://digitallibrary.un.org/record/609197?ln=en> accessed 23 May 2025.

²⁰ International Labour Organization, ‘Ratifications of C169 - Indigenous and Tribal Peoples Convention, 1989 (No. 169)’ (1989), <https://normlex.ilo.org/dyn/nrmlx_en/f?p=NORMLEXPUB:11300:0::NO::P11300_INSTRUMENT_ID:312314> accessed 23 May 2025.

²¹ Morgae Thorens, Nadia Bernaz, Otto Hospes, ‘Advocating for the EU Corporate Sustainability Due Diligence Directive Against the Odds: Strategies and Legitimation’ (2025) 63(2) Journal of Common Market Studies 606-623.

²² ‘Indigenous People and Local Communities (IPLC) in Sustainability-Focused ESG Disclosures’, (ESGVoices, 01 February 2024), <https://www.esgvoices.com/post/indigenous-people-local-communities-sustainability-esg-disclosures> accessed 19 May 2025.

²³ Directive (EU) 2024/1760 of the European Parliament and of the Council of 13 June 2024 on corporate sustainability due diligence and amending Directive (EU) 2019/1937 and Regulation (EU) 2023/2859 [2024] OJ L 1760, 5.7.2024, Article 4(2).