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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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