Towards harmonisation of a meaningful Human Rights Due Diligence or Risk of Cosmetic Compliance? : A legal analytical analysis of the Corporate Sustainability Due Diligence Directive proposal

Abstract: Caution should be made to the assumption that mandatory human rights due diligence (HRDD) for businesses automatically will lead to an increased respect for the human rights as it is susceptible to cosmetic forms of compliance. The formulation of HRDD within the Corporate Sustainability Due Diligence (CSDD) directive is thus crucial for the directive to make a substantial, meaningful change and succeed with fostering companies respect for the human rights. This paper aims to analyse HRDD and the corporate responsibility to respect the human rights within the CSDD directive proposal with a focus on the concept of cosmetic compliance, testing a theoretical point of view drawn from Ingrid Landau’s article on “Human Rights Due Diligence and the Risk of Cosmetic Compliance”. It is written using a legal dogmatic and legal analytical method, applying a theoretical framework on the CSDD directive drawn from Landau on HRDD and the risk of cosmetic compliance, analysing features of HRDD susceptible to cosmetic compliance as well as mitigating measures that could minimise the risk. The CSDD directive is an important development in holding companies accountable for their adverse human rights impacts, if adopted it would turn soft law obligations into hard law. There are some measures identified within the directive that could minimise the risk of cosmetic compliance as well as holding companies accountable. However, risks of cosmetic compliance can also be found. There may be too much focus on the process instead of the outcomes of HRDD in the directive, at the same time as few provisions set requirements for stakeholder participation, largely leaving them out of the process. The HRDD within the CSDD directive could risk leading to cosmetic forms of compliance as there are signs that some requirements within the directive and lack thereof could enable companies to engage in the process superficially.