Polycentricity and Polyphony in International Law: Interpreting the Corporate Responsibility to Respect Human Rights

Abstract

Complex multi-actors and multi-level governance structures have emerged in areas that were traditionally exclusively the preserve of the State and treaty-making. The adoption of the United Nations Guiding Principles on Business and Human Rights (UNGP) affirmed a corporate responsibility to respect human rights to be implemented through human rights due diligence (HRDD), ie via management processes. The open-ended character of the UNGP generated the emergence of other soft instruments offering guidance to corporations in structuring HRDD. This contribution conceptualises the UNGP from the perspective of regulation as a principles-based exercise in polycentric governance reliant on regulatory intermediaries for interpretation. It then assesses the role of various sui generis normative instruments in providing interpretation to the UNGP and, how the presence of an additional layer of interpretative material contributes to the institutionalisation of responsible corporate conduct. The analysis of instruments drafted by international, non-governmental and business organisations reveals both a decentralising tension between different intermediaries due to disagreements and divergence concerning the precise extent of corporate human rights responsibilities, as well as attempts to centralise the interpretation of the UNGP. The article concludes by recommending some caution towards the employment of polycentric governance regimes and their lack of centralised interpretive authority in this domain of international law and suggests possible ways to formally establish centralised interpretation.

Polycentricity and Polyphony in International Law. Interpreting the Corporate Responsibility to Respect Human Rights

“…That Ruggie sees himself as a main architect behind the UNGP is clear from his writings, 167 and from his limited receptivity to input concerning possible changes to the core concepts of the framework. 168 The centralising effect of Ruggie's interventions and his position as the 'main creator' are difficult to reconcile with the UNGP' focus on polycentricity, pluralism and consultation. The additional reliance on Shift, established by Ruggie as a centre of expertise on the UNGP, is a creative attempt to insulate the code from other influences and to develop it in accordance with its founding principles through multi-stakeholder workshops and consensus.…”

“…In a letter, Ruggie noted the misconstruction of UNGP 13 by collapsing 'cause' and 'contribution' into a single category, and the introduction of the term of 'proximity to harm'. 143 Following Ruggie's intervention and NGOs pressure, the Thun Group slightly revised its position, or legal persons involved are domiciled, all have jurisdiction over claims. 175 This approach increases the possibility of national litigation concerning the meaning and boundaries of HRDD, which could foster consistency and uniformity.…”