With the rise of mandatory human rights due diligence (HRDD) laws across various jurisdictions, governments are turning to regulatory tools to tackle the transnational challenges of business and human rights. Yet, the dominant focus on an ex-post standard such as mandatory HRDD may not adequately address the root causes of rights abuses in commercial activities. The individualized ex-post enforcement model which underpins HRDD has limited potential to address the systemic infrastructure of exploitative business practices. The upstream purchasing and contracting practices which lead to human rights violations in supply chains are overlooked, and even reinforced, in such a model. Without dispelling the importance of HRDD in charting a path of progress and corporate accountability, this Article critically evaluates its weaknesses in light of the risk that the status quo of exploitative business models may be preserved even as due diligence laws are ushered forward. To counter this ex-post tendency, this Article examines whether proactive ex-ante mechanisms can fill the gaps where HRDD has fissured and cracked. From both a normative perspective and by drawing upon existing debates between ex-ante and ex-post enforcement (or rules versus standards), this Article makes the case for lawmakers to embrace a smart mix of both and presents some options for implementation. The aim is not to pause the current impetus in legislative efforts—instead, it is to capture this momentum and highlight avenues through which domestic policymakers can take a prophylactic approach for prevention, accountability and remedy in business and human rights.
Addressing Root Causes: The Need for Ex-Ante Regulation in Business and Human Rights,
Buff. Hum. Rts. L. Rev.
Available at: https://digitalcommons.law.buffalo.edu/bhrlr/vol29/iss1/2