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20 Melb. J. Int'l L. 221 (2019)
Human Rights Due Diligence and the Risk of Cosmetic Compliance

handle is hein.journals/meljil20 and id is 234 raw text is: HUMAN RIGHTS DUE DILIGENCE AND THE RISK OF COSMETIC COMPLIANCE INGRID LANDAU* The concept of human rights due diligence is now embedded in many transnational regulatory instruments and is finding its way into national regulatory frameworks. As a means of conceptualising and operationalising responsible business conduct in a global economy, human rights due diligence is new, shiny and compelling. This article argues, however, that institutionalisation, even legalisation, of the concept may not necessarily bring about widespread, significant improvements in corporate behaviour. This is because companies may adopt internal policies and compliance structures that have all the formal hallmarks of human rights due diligence, but that fail to lead to genuine and substantial improvements in practice. This article argues that, in light of this susceptibility to cosmetic compliance, it is important for international and national lawmakers to engage not only with the question of how to encourage or mandate human rights due diligence, but also with the question of how regulatory initiatives should be designed to minimise the risk of companies performing human rights due diligence cosmetically. Drawing on the normative concept of 'meta-regulation', the article identifies a number of principles that may help ensure due diligence regulation is crafted to enable businesses to implement respect for human rights in a way that is adapted to their unique circumstances, while ensuring the steps they take are meaningful and that they are held accountable for their self-regulatory systems. CONTENTS I Introdu ction ........................................................................................................... 222 II Human Rights Due Diligence as a Regulatory Response to the Business and Human Rights Challenge ...................................................................................... 223 A Em ergence of the Concept........................................................................ 223 B Human Rights Due Diligence in International Law ................................. 226 C Human Rights Due Diligence in National Law........................................ 230 III Human Rights Due Diligence, Law and the Risk of Cosmetic Compliance ........ 232 A Human Rights Due Diligence as Business Regulation............................. 233 B The Risk of Cosmetic Compliance ........................................................... 234 1 A m biguity .................................................................................... 235 2 Proliferation of G uidance ............................................................. 236 3 Lack of Transparency................................................................... 237 4 A Focus on Process Not Outcomes .............................................. 238 IV Towards Better Quality Human Rights Due Diligence through Meta-Regulation239 A Anchoring Human Rights Due Diligence in the Corporate Responsibility to Respect Human Rights ............................................................................. 240 B D etailed D isclosure .................................................................................. 241 C Rights to Consultation and Participation .................................................. 243 D R egulatory C onsequences......................................................................... 243 E A n Engaged R egulator.............................................................................. 245 V Conclusion ............................................................................................................ 246 * Lecturer, Department of Business Law and Taxation, Monash Business School, Monash University; PhD Candidate, Melbourne Law School. 221

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