Transcending the public/private divide through two standards of due diligence

Engaging critically with the fact international law of responsibility rests on a strict division between the public and the private sphere – the latter traditionally beyond its reach – Chapter Five argues that this separation is not a natural state of affairs but the product of a political choice. It examines whether the boundary can be transcended to reduce accountability gaps. Two complementary tools are identified as enabling a degree of interpenetration between the spheres. The first is the expansive interpretation of states’ positive human rights obligations, which requires them to take reasonable measures to prevent violations by private actors and to ensure access to remedies when such violations occur. This approach allows the public sphere to extend into areas of private activity without altering attribution rules. The second is corporate human rights due diligence (HRDD), a core element of the UN Guiding Principles on Business and Human Rights. HRDD blends private governance methods with public accountability safeguards, such as stakeholder consultations and reporting duties. The hybrid responsibility model integrates these two distinct due diligence standards – state and corporate – thereby expanding protection for rights-holders in the private sphere and narrowing existing accountability gaps.