Mandatory Corporate Human Rights Due Diligence Models: Shooting Blanks?

Abstract

The major stakeholders, including states (at least, in the global North) and transnational corporations (TNCs), have radically changed their attitude to the idea of mandatory human rights due diligence in the last decade. By asking what is behind these good intentions, and whether the mandatory corporate human rights due diligence models enforced so far are effective or represent an exercise in shooting blanks, and by combining a legal positivistic perspective with studies on governance and the production of knowledge, this article contributes to the legal and socio-legal assessment of these changes. Assessing the effectiveness of mandatory corporate human rights due diligence, this article discusses the inherent or implied features of this regulatory tool which restrict its ability to serve as an instrument to protect human rights. A special focus is made on two main restrictions that are specific for human rights due diligence: the regulatory boundary revealed in the auxiliary character of due diligence and its limed ability to serve as a standard of conduct, and the epistemic boundary, deriving from the conflicting role of companies as the architects and executives of knowledge production. To a certain extent, the legislative process can counterbalance some of these restrictions by setting up the substantive, precise obligations of companies, and by creating mechanisms of control and remediation. However, the analysis of nine different instruments reveals that neither states, nor the EU have used the potential of the regulatory force.