Céline da Graça Pires is a French-qualified lawyer, holder of the Certificat d’aptitude à la profession d’avocat (CAPA – French Certificate of Aptitude for the Legal Profession) and Business & Human Rights expert with over ten years of experience advising companies on human rights due diligence and conducting engagement with affected stakeholders, especially affected communities through on-the-ground Human Rights Impact Assessments (HRIAs) in Latin America and Africa, including in high-risk and conflict-affected settings. She is the author of the UN Global Compact Network France Practical Guide Businesses – Affected Communities: Adopting a Human Rights-based Approach for Meaningful Engagement and Effective Impact Management.
Cannelle Lavite is a human rights lawyer specialized in business and human rights strategic litigation, currently a Visiting Scholar at NOVA BHRE. Previously, she worked at the European Center for Constitutional and Human Rights (ECCHR), acting as co-director of the business and human rights program between 2022 and 2026. At ECCHR, she co-developed the legal strategy in the litigation brought by the indigenous community of Unión Hidalgo (Mexico) and ProDESC against EDF in France. She also specializes in business and human rights in conflict-affected areas, having co-led the criminal case against the French multinational Lafarge in France for complicity in crimes against humanity and financing of terrorism, as well as an international legal strategy against European arms traders in the context of the war in Yemen.
Q. Claire Bright: Before we turn to our speakers, let me briefly summarize the case.
The case concerns EDF’s Gunaa Sicarú wind farm project in Oaxaca, Mexico, developed through its Mexican subsidiaries (Eolica de Oaxaca and EDF Renewables Mexico), on land belonging to the Zapotec Indigenous community of Unión Hidalgo. According to the community, the project development failed to respect the collective nature of its land rights and its right to Free, Prior and Informed Consent (FPIC), while also giving rise to serious security incidents involving human rights defenders and polarization in the community.
In parallel to several proceedings in Mexico, the dispute had already been brought before the French OECD National Contact Point, which examined a specific instance concerning EDF’s activities in Unión Hidalgo under the OECD Guidelines for Multinational Enterprises. Following a formal notice issued in 2019, Unión Hidalgo representatives, the Mexican organization ProDESC and ECCHR filed a civil lawsuit against EDF in France. Under the French Duty of Vigilance Law (the “Vigilance Law”), they sought an injunction ordering EDF to bring its Vigilance Plan into compliance with the Law. The community also sought reparation for the damage sustained as a result of EDF’s alleged breach of its vigilance obligations.
The proceedings involve two distinct avenues provided for by the Vigilance Law: an injunctive action, seeking to require EDF to comply with its vigilance obligations and adequately address the alleged gaps in its vigilance plans and its implementation; and a civil liability action, seeking reparation for harm allegedly resulting from a failure to comply with those vigilance obligations. After the pre-trial judge (“juge de la mise en état”) initially found the action inadmissible, the Paris Court of Appeal reversed that decision in June 2024, allowing the case to proceed on the merits. On 24 September 2026, the Paris Judicial Court heard the case on the merits.
As the first Vigilance law case to allege violations of Indigenous Peoples’ rights, it raises important questions about the substantive scope of corporate vigilance obligations, particularly whether Free, Prior and Informed Consent (FPIC) falls within the ratione materiae scope of the Law, notwithstanding France’s non-ratification of ILO Convention No. 169. The case also brings into focus the responsibilities of companies when State-led consultations fall short of international human rights standards.
In particular, the case brings into focus what companies are required to do to identify and prevent adverse impacts on Indigenous Peoples’ consultation and consent rights, as well as risks to human rights defenders, in the context of large-scale energy projects. It also raises important procedural questions regarding access to justice and remedy under the Vigilance Law and may also have broader implications for the interpretation and implementation of the EU Corporate Sustainability Due Diligence Directive (CSDDD) requirements.
Q. to Cannelle Lavite: during the hearing, the defendant, EDF, submitted that the claim had become moot since the formal notice was served. How is that question relevant for the implementation of the duty of vigilance law for both rightsholders and businesses?
Yes, that claim was sustained by the fact that the Gunaa Sicarú project was abandoned following decisions of the Mexican authorities, the claimants’ injunction claims had become devoid of purpose.
The claimants responded that the subject matter of their preventative claim seeking an injunction order is EDF’s failure to comply with its obligation under Art. L. 225-102-4, I of the French Commercial Code: to publish a Vigilance Plan including reasonable measures to identify risks and mitigate serious human rights violations and environmental damage across its global activities.
The duty of vigilance is not an obligation of result tied to a specific project and a given moment. It is an obligation of means, a continuous process during which companies must keep identifying, preventing and mitigating severe adverse impacts associated with their global activities, updating their vigilance plans over time. The cornerstone of that duty is the risk mapping exercise (Art. L. 225-102-4, I, 1°), which requires a company to identify, analyse and rank the risks to be included in the Vigilance Plan and addressed with adequate mitigation measures. Perhaps even more importantly, unlike classical corporate social responsibility, mHRDD applies in a dynamic and in concreto exercise: to be effective, the risk mapping and the corresponding measures must be grounded in the on the ground realities of a company’s operations. Difficulties or alleged adverse impacts encountered in a particular project may therefore be relevant not only to that project, but also to the identification and prevention of similar risks across other subsidiaries, projects or business relationships. This is clear from soft law standards in which the Vigilance Law is grounded such as the OECD Guidelines on MNEs and the United Nations Guiding Principles on Business and Human Rights (“UNGPs”). But that is also reflected in the Vigilance Law provision that the plan is meant to be drawn up in association with stakeholders, and that companies subject to the Law should regularly assess the situation across their subsidiaries, subcontractors and suppliers.
This is where the Unión Hidalgo experience becomes particularly important. The claimants argue that what occurred in connection with Gunaa Sicarú revealed broader shortcomings in the way EDF’s vigilance plans identify and address risks concerning Indigenous Peoples’ rights and human rights defenders. From that perspective, the abandonment of one project does not answer the question whether lessons from that experience should inform the company’s ongoing risk mapping and preventive measures. Therefore, lessons learned from these specific violations must feed back into the vigilance plan, which to this day, according to the Claimants, is not comprehensively and explicitly addressing these risks. In my view, this legal question allows us to reflect once again on the core objective of mHRDD injunctive mechanism: prevention. With this mechanism, the Vigilance Law seeks to provide remedy to claimants who have already been affected by a companies’ failure to conduct HRDD, but also to prevent these failures from continuing in the same context – or to re-occur in other projects of a company worldwide. How the court resolves this point will matter well beyond this case. For rightsholders, it determines whether a company can defeat an injunction by abandoning a project or a business relationship mid-proceedings.
Q. for Céline da Graça Pires: One of the key arguments put forward at the hearing was that FPIC constitutes a ‘specific right of Indigenous Peoples’ and, as such, falls outside the scope ratione materiae of the Vigilance Law, particularly given that France has not ratified ILO Convention No. 169. How would you assess this argument from a legal perspective?
The argument appears to rest on an underlying assumption that FPIC constitutes a distinct right, slightly exotic, specific to Indigenous Peoples, whose legal basis is confined to ILO Convention No. 169, which France has not ratified, and therefore falls outside the scope of the French Duty of Vigilance Law and beyond the concern of French courts. But this assumption risks conflating two distinct legal considerations: the specificity of the rights-holders (Indigenous Peoples) and the universality of the rights at stake. This is where the underlying specificity bias deserves to be unpacked, step by step.
First step, FPIC is not an Indigenous distinct category of human rights, detached from the universal human rights framework. It is an internationally recognised procedural safeguard that gives concrete expression to pre-existing, universally recognised rights for their effective enjoyment by Indigenous Peoples, collectively. It is how self-determination, participation, culture, land and subsistence are respected when the rights-holders are Indigenous peoples.
The Expert Mechanism on the Rights of Indigenous Peoples (EMRIP) devoted an entire study to the point in 2018 and clearly stated that the provisions on FPIC “do not create new rights for indigenous peoples, but rather provide a contextualized elaboration of general human rights principles and rights as they relate to the specific historical, cultural and social circumstances of indigenous peoples.”[1] Special Rapporteur Barume said the same in 2025: “The Declaration does not provide special or new rights to Indigenous Peoples. Rather, it reformulates and codifies universal human rights, as enshrined in numerous legally binding human rights instruments, contextualizing them to the circumstances of Indigenous Peoples.”
Second step, FPIC does not depend solely on ILO Convention No. 169 or United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). FPIC is rooted in the two binding 1966 Covenants, ICCPR and ICESCR, forming part of the International Bill of Human Rights: common Article 1 (self-determination, including peoples’ pursuit of their development and control over their natural wealth and resources), and other rights of the ICCPR and the ICESCR.[2] Additionally, FPIC is also grounded in the right not to be a victim of racial discrimination, which is protected by the International Convention on the Elimination of All Forms of Racial Discrimination.
As stated by the EMRIP, FPIC is as “a human rights norm grounded in the fundamental rights to self-determination and to be free from racial discrimination guaranteed by the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights and the International Convention on the Elimination of All Forms of Racial Discrimination”. [3]
And more from Special Rapporteur Barume : “Indigenous Peoples are recognized as ‘peoples’ in international law, and as such are entitled to the right to self-determination, guaranteed by common article 1 of the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights.” [4]
France is party to all three treaties: it acceded to the two Covenants (ICCPR and ICESCR) on 4 November 1980[5] and ratified the ICERD on 28 July 1971.[6] Regarding the French Vigilance Law and before the French judge, the demonstration never needs to pass through Convention No. 169.
Third step, and as highlighted by the UN BHR Working Group on its recent Guidance on the right of Indigenous Peoples to free, prior and informed consent in the context of business activities[7], UN human rights treaty bodies “have consistently affirmed that, in contexts affecting Indigenous Peoples, the realization of their rights under international human rights law requires the effective implementation of FPIC”.
Over the years, the committees that monitor these treaties have linked FPIC to several of the universal human rights they protect. For instance, the Committee on Economic, Social and Cultural Rights (CESCR), the one tasked with the interpretation and monitoring of the ICESCR, in its General Comment No. 26 on land and economic, social and cultural rights, particularly relevant to this case, links land rights to common Article 1 and clearly specifies that: “The international legal standard for Indigenous Peoples is that of free, prior and informed consent”[8]. The CESCR also makes the connection to corporate due diligence explicit, in its General Comment No. 24: “In exercising human rights due diligence, businesses should consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free, prior and informed consent before the commencement of activities”[9].
So, France’s non-ratification of ILO Convention No. 169 cannot, on its own, justify excluding FPIC from the French duty of vigilance.
Fourth step now, the scope ratione materiae of the French duty of vigilance law in the legislative preparatory work. The architect of France’s LdV, Dominique Potier, in the preparatory report of the LdV, referred to the International Bill of Human Rights and the ILO Declaration on Fundamental Principles and Rights at Work as the minimum reference framework for the corporate vigilance obligations, because those instruments are the most universally recognised and are the yardstick by which other social actors judge companies.[10] “Au minimum” is a floor, not a ceiling. This echoes the commentary to UN Guiding Principle 12, which inspired the Vigilance Law: the corporate responsibility to respect extends to the core internationally recognized human rights, contained in the International Bill of Human Rights (consisting of the Universal Declaration of Human Rights and the ICCPR and the ICESCR), coupled with the principles concerning fundamental rights in the eight ILO core conventions as set out in the Declaration on Fundamental Principles and Rights at Work, and depending on circumstances, companies are called to consider “additional standards”, “protecting groups or populations that require particular attention”, expressly including UN instruments elaborating on Indigenous Peoples’ rights (ILO Convention 169 and UNDRIP).
This supports two conclusions: first, FPIC is already grounded in the two Covenants within the minimum reference framework informing the French duty of vigilance law’s scope ratione materiae; second, the circumstances of this case call for consideration of additional standards, given the operational context and the risks to Indigenous rightsholders, namely the UNDRIP and ILO Convention No. 169.
Finally, the EU CSRD and related ESRS, first adopted in 2023, expressly addressed FPIC and retained it through the recent September 2026 simplification. How is a company to navigate a framework that requires relevant disclosures on respect for FPIC under CSRD ESRS S3 (when the topic is deemed material through a double materiality assessment), while being told that FPIC falls outside the scope of its duty of vigilance? Expecting companies to report on and meet FPIC standards in some contexts while excluding them from vigilance creates legal uncertainty and inconsistency about the risks they must address.
Q. for Céline da Graça Pires. When a State fails to fulfil its obligations regarding Indigenous Peoples’ free, prior and informed consent (FPIC), what are the implications for businesses, and how should they respond?
Yes, the duty to consult under FPIC and through international law is the State’s responsibility, but, the State’s duty to consult does not remove the company’s own responsibility to respect human rights, including Indigenous Peoples’ rights.
Under the UN Guiding Principles, the two responsibilities are independent. As recalled by the UN Working Group on BHRC, in their dedicated Guidance on the right of Indigenous Peoples to free, prior and informed consent in the context of business activities, the corporate responsibility to respect “exists independently of States’ abilities and/or willingness to fulfil their own human rights obligations … [a]nd it exists over and above compliance with national laws and regulations”.[11] A government permit therefore does not, by itself, demonstrate respect for Indigenous Peoples’ rights, is not, in itself, a human rights clearance for a company, and the State’s failure does not remove the company’s own responsibility.
For me, the practical question is straightforward: what did the company do when it knew, or should have known, that Indigenous Peoples’ rights, including FPIC, were at risk?
We highlight this point and the practical consequences in the UN Global Compact Network France guide Businesses – Affected Communities[12]: failures in State-led consultation can jeopardise authorisations, licences and concessions, exposing companies to disputes, legal uncertainty and reputational risks. A defective process can therefore affect the project long after a permit has been issued.
Now, let’s be clear: regarding FPIC, a company is not asked to replace the State or to manufacture consent. However, its independent responsibility to respect human rights calls for appropriate due diligence regarding the State-led consultation processes on which its projects rely. In practice, this involves reasonable, proportionate and achievable measures: assess the adequacy of these consultation processes, identify shortcomings and take appropriate action. It should establish whether engagement occurred sufficiently early, involved Indigenous Peoples’ own representative institutions, provided accessible information and respected their decision-making processes, free from coercion. The findings of this assessment should inform the company’s decisions on whether and how to proceed with the project, taking into account the human rights risks identified and the measures available to address them.
Q. for Cannelle Lavite: How does the question of applicable law and the extraterritoriality of the obligations set up in the French Vigilance Law play out in this case?
Indeed, it was submitted during the hearing that French law is not applicable to the claim. Under article 4 of Rome II Regulation, which is applicable to conflict in laws in extra-contractual obligations, the law applicable primarily is the place where the damaged occurred, here Mexico. There is an exception to that general rule, and that is was key question at stake during the hearing: does the Duty of Vigilance law qualify as an overriding mandatory provision (Loi de Police) as per article 16 of Rome II regulation? An overriding mandatory provision is a domestic provision whose observance is regarded as essential for safeguarding the political, social, or economic organisation of the forum State, and therefore applies to situations falling within its scope irrespective of the law otherwise applicable under the ordinary conflict-of-law rules set up in article 4 of the Rome II regulation.
It’s interesting to recall that this very question was addressed by the Paris Judicial Court in its Yves Rocher / duty of vigilance case judgment of 12 March 2026[13], which clearly defined the Vigilance Law an overriding mandatory provision. Recalling the case law of the Court of Justice of the European Union, which interprets the notion of overriding mandatory provision strictly, the court noted that this qualification is subject to two conditions: a sufficiently close link with the territory of the forum to justify the application of that rule, and a fundamental interest to be protected in its legal order. The court went back to the explanatory memorandum to Duty of Vigilance law[14] which states that, in line with the UNGPs and the OECD Guidelines, the Law’s objective is to make create obligations for French companies to prevent serious harms to human rights and fundamental freedoms, safety, health and the environment in France but also abroad, which extends to risks arising from the activities of its controlled subsidiaries, including subsidiaries operating abroad, and to obtain reparation for victims of transnational corporate activity who would otherwise face overwhelming barriers to access remedy. The court also specifically noted that “ para 69. The contribution of these provisions, in the above-recalled context of the prevention of the negative impacts of multinationals on their activities, is to allow a victim, in all places, to obtain full reparation of his or her damage from the parent company or the ordering company, which has contravened its obligations of vigilance, as specified by L. 225-102-1 of the Commercial Code, by seeking its liability for fault on the basis of national law. 70. It was indeed well understood in the course of the parliamentary work that, in order to make effective the remedy of victims in damages, in particular in the hypothesis where the harm would occur in a third country, the terms of the law designate the applicable national law of civil liability and not that which would be designated by the rules in matters of private international law. ».
The court concluded that the respect of these legal provisions is essential for the safeguard of these fundamental interests – human rights and the environment – and thus characterised the Vigilance Law as an overriding mandatory provision as per art. 16 of the Rome II statute.
This question has significant practical consequences. For those affected by corporate harm, it determines whether the civil liability mechanism established by the Vigilance Law can effectively provide access to remedy, where the harm materialises outside France, which is frequently the case. A liability mechanism that ceases to apply whenever the damage occurs outside France would return rightsholders to the jurisdictional legal deadlock they faced 15 years ago, prior to the adoption of mHRDD laws. It matters equally for legal certainty for businesses, because the answer will determine the law governing potential liability arising from failures to comply with vigilance obligations in relation to their overseas operations. And this question now matters beyond the French context: following the 2026 Omnibus amendments, the CSDDD no longer provides for harmonised EU conditions for civil liability or requires national liability rules to apply as overriding mandatory provisions. This places renewed importance on national liability regimes and private international law in determining whether, and under which law, rightsholders can seek remedy for harm occurring across borders.
Suggested citation: C. da Graça Pires & C. Lavite, ‘NOVA BHRE Interview on the EDF Case‘, NOVA BHRE Blog, 28 October 2026
References:
[1] A/HRC/39/62, para. 3 (2018)
[2] Article 25 (the right to participation) and Article 27 ICCPR (the right of persons to enjoy their own culture), and Articles 2 (non-discrimination in the enjoyment of Covenant rights), 11 (an adequate standard of living, including food and housing) and 15(1)(a) ICESCR (participation in cultural life).
[3] Ibid
[4] A/HRC/60/29, paras. 10-11 (2025)
[5] Two decrees : Décret n° 81-76 du 29 janvier 1981 and Décret n° 81-77 du 29 janvier 1981.
[6] https://www.legifrance.gouv.fr/jorf/id/JORFTEXT000000687662
[7] A/HRC/62/36/Add.2, 9 June 2026, see in particular paras. 6 and 7 and footnote 6 (2026) Committee on the Elimination of Racial Discrimination (Ågren et al. v. Sweden, CERD/C/102/D/54/2013 (2020), para. 6.7 and 6.20); Human Rights Committee; Committee on Economic, Social and Cultural Rights (J.T., J.P.V. and P.M.V. and others v. Finland, E/C.12/76/D/251/2022, E/C.12/76/D/289/2022, paras. 14.4-14.5 & 14.8); Committee on the Elimination of Discrimination against Women; Committee on the Rights of the Child; and Committee on the Rights of Persons with Disabilities.
[8] General comment No. 26 (2022) on land and economic, social and cultural rights, para. 21
[9] General comment No. 24 (2017) on State obligations in the context of business activities, para. 17
[10] Rapport no. 2628, 11 March 2015, in French: “La diligence raisonnable constitue une obligation de moyen et non de résultat. Elle consiste en une série de mesures appropriées dans le but de réaliser un objectif défini dans une norme nationale ou internationale, à respecter un niveau minimal de prudence dans la prise en compte d’un standard extérieur. Selon les Nations unies, son contenu fondamental se réfère au minimum « à la Charte internationale des droits de l’homme – la Déclaration universelle et les deux Pactes internationaux − ainsi qu’à la Déclaration de l’OIT relative aux principes et droits fondamentaux au travail. Il y a deux raisons à cela. D’une part, les principes consacrés par ces instruments sont les plus universellement reconnus par la communauté internationale. D’autre part, c’est principalement à leur aune que les autres acteurs sociaux jugent de l’impact des entreprises sur les droits de l’homme».
[11] UN Working Group, A/HRC/62/36/Add.2, para. 33
[12] Pacte Mondial de l’ONU, Réseau France, Businesses – Affected Communities: Adopting a Human Rights-based Approach for Meaningful Engagement and Effective Impact Management, accessible here: https://pactemondial.org/wp-content/uploads/2025/11/Practicial-guide-Businesses-Affected-communities.pdf
[13] In a case concerning harm suffered by workers of Turkish subsidiaries, the Court held that the French Duty of Vigilance framework constituted an overriding mandatory regime and applied French law notwithstanding the fact that the damage had occurred in Turkey. Tribunal de Paris: https://www.tribunal-de-paris.justice.fr/sites/default/files/2026-03/CP%202026.03.12%20-%2034%C3%A8me%20chambre.pdf?utm_source=chatgpt.com
[14] Proposition de loi no. 2578, registered at the National Assembly on 11 February 2015