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The UN Guiding Principles’ Orbit and Other Regulatory Regimes in the Business and Human Rights Universe: Managing the Interface

Published online by Cambridge University Press:  22 June 2021


What should be the interface of the United Nations Guiding Principles on Business and Human Rights (UNGPs) with other regulatory regimes in the business and human rights (BHR) universe? This article explores this issue in relation to two specific contexts. First, the interface of ‘social norm’ with evolving ‘legal norms’: relation of Pillar II of the UNGPs and mandatory human rights due diligence (HRDD) laws as well as parent companies’ direct duty of care for negligence. Second, the interface of ‘soft norms’ and evolving ‘hard norms’: how the UNGPs should inform the proposed BHR treaty. It is argued that legal norms should align with Pillar II only in a ‘loose manner’. They should draw from and build on the HRDD concept under Pillar II, but not be constrained by it, because a hard alignment of Pillar I laws with Pillar II could undercut the independent but complementary status of the two pillars. Moreover, the UNGPs should serve only as a ‘starting point’ and not the ‘end point’ in the evolution of other hard or soft norms in the future. Such an approach would be desirable because the UNGPs alone are unlikely to be enough to challenge or confront the existing structure of irresponsibility and inequality.

Scholarly Articles – Special Issue on “BHR Landscape after 10 years of the UNGPs: An Assessment”
© The Author(s), 2021. Published by Cambridge University Press

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Conflicts of interest: The author is a Member of the UN Working Group on Business and Human Rights (May 2016 to April 2022). The views expressed here are personal opinion of the author and do not represent the position of the UN Working Group.


Associate Professor, School of Law, City University of Hong Kong. I would like to thank Florian Wettstein, Gabriela Quijano and Radu Mares for their comments on a draft of this article.

Funding statement: The research or writing of this manuscript has not been funded or commissioned by third parties.


1 Human Rights Council, ‘Guiding Principles on Business and Human Rights: Implementing the United Nations “Protect, Respect and Remedy” Framework’ (UNGPs), A/HRC/17/31 (21 March 2011).

2 Only a few scholars now question the existence of such a responsibility. Although many businesses in private continue to be uncomfortable with the terminology of ‘human rights’, hardly any business executive would say publicly now that they have no human rights responsibilities or that their only responsibility is to maximize shareholders’ profit.

3 Apart from mandatory HRDD laws in Europe, soft guidelines have been issued by some states, e.g., India’s National Guidelines on Responsible Business Conduct 2018; Chinese Due Diligence Guidelines for Responsible Mineral Supply Chains 2016.

4 OHCHR, ‘OEIGWG Chairmanship Second Revised Draft 6.08.2020’, (accessed 23 February 2021). For analysis, see Surya Deva, ‘The Business and Human Rights Treaty in 2020: The Draft is “Negotiation-Ready”, but are States Ready?’, OpinioJuris, (8 September 2020), (accessed 23 February 2021).

5 The system consists of diverse strands, from a neoliberal free market economy to a socialist market economy.

6 Surya Deva, ‘A Just Recovery for Whom? And How to Achieve It?’, Business and Human Rights Journal Blog (8 January 2021), (accessed 25 February 2021).

7 Such models may relate to both structures (corporate groups) and operations (supply chains or gig platforms).

8 The ‘responsibility to respect is defined by social expectations – as part of what is sometimes called a company’s social licence to operate’. Human Rights Council, ‘Protect, Respect and Remedy: A Framework for Business and Human Rights’, A/HRC/8/5 (7 April 2008), para 54.

9 John Gerard Ruggie and John F Sherman III, ‘The Concept of “Due Diligence” in the UN Guiding Principles on Business and Human Rights: A Reply to Jonathan Bonnitcha and Robert McCorquodale’ (2017) 28 European Journal of International Law 921, 923.

10 Ibid, 924.

11 Ruggie, John, Just Business: Multinational Corporations and Human Rights (New York: WW Norton & Company, 2013), 84 Google Scholar.

12 Ibid.

13 UNGPs, note 1, Principle 3 and the commentary.

14 Human Rights Council, ‘Protect, Respect and Remedy’, note 8, para 27.

15 UNGPs, note 1, Principle 4 and the commentary.

16 Ibid, Commentary to Principle 7.

17 ‘Sorgfaltsprüfung bezüglich Menschenrechte und Umwelt im Zusammenhang mit Auslandaktivitäten von Unternehmen: Kein Schweizer Alleingang in der Gesetzgebung’, (accessed 9 March 2021).

18 ‘Letter from John Ruggie’ (19 September 2019), (accessed 9 March 2021).

19 HRDD under Pillar II has conceptual, operational and structural limitations. Let me briefly allude to some of these limitations. First, HRDD does not contemplate any responsibility of ‘result’ in any situation. Second, it conflates responsibility to respect and responsibility to protect human rights in relation to businesses. Third, HRDD does not address adequately the problems flowing from the imbalance of power and information between businesses and rights-holders – merely asking businesses to do ‘meaningful consultation with potentially affected groups and other relevant stakeholders’ (Principle 18) does not go far enough in practice. Fourth, HRDD may not be able to dismantle business models of irresponsibility and inequality (see discussion in section III).

20 The commentary to Principle 12, however, refers to these as ‘additional standards’ that businesses may need to consider depending on circumstances.

21 The scope and effect of a mandatory human rights and environmental due diligence law proposed by the European Commission is yet to be seen.

22 As the proposed German mandatory HRDD claims that its requirements ‘closely align with the due diligence standard’ of the UNGPs, Ruggie in his letter to the government raised concerns about the proposed legislation not being ‘closely’ aligned with the UNGPs, e.g., focus on tier one suppliers, absence of salient human rights risks, and over-focus on contractual enforcement of human rights clauses. Shift, ‘Ruggie’s letter to the German government’ (9 March 2021), (accessed 10 March 2021). In my view, governments need not claim or ensure a complete alignment of their Pillar I laws with the Pillar II social norm.

23 In relation to mandatory HRDD laws, OHCHR noted that ‘there is not one, single model’. OHCHR, ‘UN Human Rights “Issues Paper” on legislative proposals for mandatory human rights due diligence by companies’ (June 2020), 1, (accessed 13 April 2021). This holds true for all Pillar I laws.

24 Emphasis added.

25 HRDD may also operate as a ‘standard of expected conduct’. Nicolas Bueno and Claire Bright, ‘Implementing Human Rights Due Diligence through Corporate Civil Liability’ (2020) 69 International & Comparative Law Quarterly 789, 794.

26 Section 32(1) of the South African Constitution provides: ‘Everyone has the right of access to – a. any information held by the state; and b. any information that is held by another person and that is required for the exercise or protection of any rights’ (emphasis added). See also Section 3(b) read with sections 50–72 of the Promotion of Access to Information Act 2000. For an analysis, see Lisa Chamberlain, ‘Fighting Companies for Access to Information’ (2016) 13:23 Sur – International Journal on Human Rights 199.

27 Mark Taylor, ‘Mandatory Human Rights Due Diligence in Norway – A Right to Know’, Blogging for Sustainability (12 April 2021), (accessed 13 April 2021).

28 Danish Institute for Human Rights, ‘Human Rights Assessment in Philip Morris International’ (4 May 2017), (accessed 10 March 2021).

29 At the time of writing, two such concrete scenarios are operations in the Xinjiang province in China and in Myanmar after the 2021 coup.

30 UNGPs, note 1, General Principles.

31 Karin Buhmann, ‘Neglecting the Proactive Aspect of Human Rights Due Diligence? A Critical Appraisal of the EU’s Non-Financial Reporting Directive as a Pillar One Avenue for Promoting Pillar Two Action’ (2018) 3 Business and Human Rights Journal 23.

32 The ‘move to have the corporate responsibility to respect human rights parallel states’ obligations is unnecessary, and it is out of character with the Guiding Principles’. Ruggie and Sherman, note 9, 926.

33 The business responsibility to respect human rights ‘exists over and above compliance with national laws and regulations protecting human rights’, Human Rights Council, note 1, Commentary to Principle 11.

34 Soledad García Muñoz, Special Rapporteur on Economic, Social, Cultural and Environmental Rights, Business and Human Rights: Inter-American Standards (CIDH, 2019) 60–86.

35 Fernando Basch et al, ‘The Effectiveness of the Inter-American System of Human Rights Protection: A Quantitative Approach to its Functioning and Compliance with its Decisions’ (2010) 7:12 Sur – International Journal on Human Rights 9, 13–14.

36 Olivier De Schutter, ‘Towards a New Treaty on Business and Human Rights’ (2015) 1 Business and Human Rights Journal 41, 45. Knox also argues that Ruggie might have paid ‘insufficient attention to the differences in the language of human rights treaties’; John Knox, ‘The Ruggie Rules: Applying Human Rights Law to Corporations’ in Radu Mares (ed.), The UN Guiding Principles on Business and Human Rights – Foundations and Implementation (Martinus Nijhoff Publishers, 2012) 51, 79. See also Committee on Economic, Social and Cultural Rights, General Comment No. 24 on State obligations under the International Covenant on Economic, Social and Cultural Rights in the context of business activities, E/C.12/GC/24 (10 August 2017).

37 Chambers discusses some ‘reasonableness’ factors to mitigate against host states foreign interference into their domestic affairs. Rachel Chambers, ‘An Evaluation of Two Key Extraterritorial Techniques to Bring Human Rights Standards to Bear on Corporate Misconduct: Jurisdictional Dilemma Raised/Created by the Use of the Extraterritorial Techniques’ (2018) 14:2 Utrecht Law Review 22, 37–38.

38 O’Brien concludes that ‘at present, there cannot be said to exist any positive legal basis for such a duty’. Claire Methven O’Brien, ‘The Home State Duty to Regulate the Human Rights Impacts of TNCs Abroad: A Rebuttal’ (2018) 3 Business and Human Rights Journal 47, 72.

39 Cassel notes that international law ‘today broadly permits, generally encourages, and sometimes obligates states to exercise jurisdiction over transnational business activities’. Doug Cassel, ‘State Jurisdiction over Transnational Business Activity Affecting Human Rights’ in Surya Deva and David Birchall (eds.), Research Handbook on Human Rights and Business (Cheltenham, Edward Elgar, 2020) 198.

40 See Jane Stapleton, ‘The Golden Thread at the Heart of Tort Law: Protection of the Vulnerable’ (2003) 24 Australian Bar Review 1; Jane Wright, Tort Law and Human Rights, 2nd edn (Oxford: Hart Publishing, 2017).

41 Richard Meeran, ‘Tort Litigation against Multinational Corporations for Violation of Human Rights: An Overview of the Position Outside the United States’ (2011) 3 City University of Hong Kong Law Review 1; Doug Cassel, ‘Outlining the Case for a Common Law Duty of Care of Business to Exercise Human Rights Due Diligence’ (2016) 1 Business and Human Rights Journal 179; Tara Van Ho, ‘Vedanta Resources Plc and Another v Lungowe and Others’ (2020) 114 American Journal of International Law 110.

42 Judgments in Four Nigerian Farmers and Milieudefensie v Shell are an exception being on the merits. Lucas Roorda, ‘Wading through the (Polluted) Mud: The Hague Court of Appeals Rules on Shell in Nigeria’, Rights as Usual(2 February 2021), (accessed 13 April 2021).

43 See, e.g., CSR Ltd v Wren [1997] 44 NSWLR 463; Chandler v Cape [2012] EWCA Civ 525; Choc v Hudbay Minerals Inc 2013 ONSC 1414; Vedanta Resources plc v Lungowe [2019] UKSC 20; Esther Kiobel v Royal Dutch Shell plc [2019] ECLI:NL:RBDHA:2019:4233; Nevsun Resources Ltd v Araya 2020 SCC 5; Four Nigerian Farmers and Milieudefensie v Shell ECLI:NL:GHDHA:2021:132, ECLI:NL:GHDHA:2021:133 and ECLI:NL:GHDHA:2021:134; Okpabi v Royal Dutch Shell plc [2021] UKSC 3.

44 Sanders discusses in detail how the UNGPs could impact the tort of negligence claims, but not how such claims could affect the UNGPs. Astrid Sanders, ‘The Impact of the “Ruggie Framework” and the United Nations Guiding Principles on Business and Human Rights on Transnational Human Rights Litigation’ in Jena Martin and Karen Bravo (eds.), The Business and Human Rights Landscape: Moving Forward, Looking Back (Cambridge: Cambridge University Press, 2016) 288.

45 The decision in Choc v Hudbay Minerals Inc (2013 ONSC 1414) was an exception. The UK Supreme Court in Okpabi also noted that interveners ‘drew to the court’s attention international and domestic standards relating to the responsibilities of business enterprises in relation to human rights and environmental protection’. Okpabi, note 43, para 73.

46 [2019] UKSC 20.

47 Ibid, para 49.

48 Ibid, para 53.

49 [2021] UKSC 3.

50 Ibid, paras 21, 109, 111 and 120.

51 Ibid, paras 128 and 129.

52 Ibid, para 143.

53 Ibid, para 147.

54 UNGPs, note 1, Principle 21. Consultation with, and communication to, the relevant stakeholders is in fact critical to all four stages of HRDD.

55 Hogan Lovells, ‘The Implications of the UK Supreme Court’s Decision in Vedanta for the Management of Human Rights Risk in Overseas Operations and Supply Chains’ (30 May 2021), (accessed 29 March 2021).

56 Ibid.

57 Peter Nestor and Jonathan Drimmer, ‘How Companies Should Respond to the Vedanta Ruling’ (30 April 2019), (accessed 30 March 2021).

58 Four such routes were articulated by the appellants in the Okpabi case. Okpabi, note 49, para 26.

59 It is worth noting that Ruggie during his mandate was aware of legal liability risks created by HRDD or disclosure of information. ‘Business and Human Rights: Towards Operationalizing the “Protect, Respect and Remedy” Framework’, A/HRC/11/13 (22 April 2009) paras 80–83. It seems that he underplayed the practical significance of such risks for companies.

60 Bueno and Bright, note 25, 812 and 816.

61 Commenting on Hamida Begum (on behalf of MD Khalil Mollah) v Maran (UK) Limited [2021] EWCA Civ 326, Holland and Bonner note: ‘the Court’s recent findings mean that companies choosing to source their products in circumstances where it is foreseeable that environmental, human rights and/or health and safety violations will occur may owe a duty of care to those exposed to these unsafe conditions. The involvement of a third party, or even the third party’s control over the unsafe conditions, does not negate that duty where the violations are entirely predictable’. Oliver Holland and Rachel Bonner, ‘Recent UK Court of Appeal Judgment May Lead to Greater Accountability of Companies Hiding Behind Complex Supply Chains’ (2 April 2021), (accessed 12 April 2021).

62 See Cassel, note 41.

63 Jonathan Bonnitcha and Robert McCorquodale, ‘The Concept of “Due Diligence” in the UN Guiding Principles on

Business and Human Rights’ (2017) 28 European Journal of International Law 899, 910–18; ITUC, Towards Mandatory Due Diligence in Global Supply Chains (Brussels: ITUC, 2020) 14.

64 ‘The obligation to disclose is the necessary fulfilment of the right of all of us to know what negative impacts companies are having on people and the planet and what those companies are doing to address those impacts’. Taylor, note 27.

65 Chambers, Rachel and Yilmaz Vastardis, Anil, ‘Human Rights Disclosure and Due Diligence Laws: The Role of Regulatory Oversight in Ensuring Corporate Accountability’ (2021) 21:2 Chicago Journal of International Law 233 Google Scholar.

66 See, for example, Council Directive 85/374/EEC Of 25 July 1985 on the Approximation of the Laws, Regulations and Administrative Provisions of the Member States Concerning Liability for Defective Products. Comparing the products liability regimes in the US and Europe, Shapo notes that the ‘policy heart of the Directive, as is the case with American products liability law, lies in its imposition of strict liability’. Marshall S Shapo, ‘Comparing Products Liability: Concepts in European and American Law’ (1993) 26 Cornell International Law Journal 279, 289.

67 See, e.g., ‘Report on the Sixth Session of the Open-Ended Intergovernmental Working Group on Transnational Corporations and Other Business Enterprises with Respect to Human Rights’, A/HRC/46/73 (14 January 2021), para 12; ‘ENNHRI Statement on Occasion of the 4th session of the Open-ended intergovernmental working group on transnational corporations and other business enterprises with respect to human rights (IGWG)’, (accessed 12 April 2021).

68 Phil Bloomer, ‘Unity in Diversity: The Advocates for the Guiding Principles and Binding Treaty Can Be Complementary’ (3 November 2014), (accessed 12 April 2021); Sara Blackwell and Nicole Vander Meulen, ‘Two Roads Converged: The Mutual Complementarity of a Binding Business and Human Rights Treaty and National Action Plans on Business and Human Rights’ (2016) 6 Notre Dame Journal of International & Comparative Law 51.

69 Daniel Augenstein, Mark Dawson and Pierre Thielbörger, ‘The UNGPs in the European Union: The Open Coordination of Business and Human Rights?’ (2018) 3 Business and Human Rights Journal 1, 22.

70 John Ruggie, ‘Third United Nations Forum on Business & Human Rights: Closing Plenary Remarks’ (3 December 2014) 2, (accessed 13 April 2021).

71 John Ruggie, ‘A Business and Human Rights Treaty? International Legalisation as Precision Tools’ (13 June 2014), (accessed 12 April 2021).

72 Ruggie and Sherman, note 9, 926.

73 Radu Mares, ‘Regulating Transnational Corporations at the United Nations: The Negotiations of a Treaty on Business and Human Rights’, unpublished paper under peer review (on file with the author) 16.

74 See Surya Deva, ‘Panel V.1: Moving Forward in the Implementation of the UN Guiding Principles on Business and Human Rights’ (27 October 2015), (accessed 12 April 2021).

75 Ibid, 2.

76 Blackwell and Meulen, note 68, 6874.

77 Claire Methven O’Brien, ‘Transcending the Binary: Linking Hard and Soft Law through a UNGPs-Based Framework Convention’ (2020) 114 American Journal of International Law Unbound 186.

78 Ibid.

79 Ibid, 190.

80 Deva, Surya, ‘Scope of the Proposed Business and Human Rights Treaty: Navigating through Normativity, Law and Politics’ in Surya Deva and David Bilchitz (eds.), Building a Treaty on Business and Human Rights: Context and Contours (Cambridge: Cambridge University Press, 2017) 154, 160161 CrossRefGoogle Scholar.

81 To remedy the ‘climate change blankness’, the UN Working Group is developing an Information Note on what the UNGPs entail in relation to climate change. OHCHR, ‘Climate Change and the UNGPs’, (access 20 February 2021).

82 Surya Deva, ‘The Zero Draft of the Proposed Business and Human Rights Treaty, Part II: On the Right Track, But Not Ready Yet’ (14 August 2018), (accessed 12 April 2021).

83 Barnali Choudhury, ‘Investor Obligations for Human Rights’ (2020) ICSID Review, (accessed 13 April 2021); Surya Deva, ‘International Investment Agreements and Human Rights: Assessing the Role of the UN’s Business and Human Rights Regulatory Initiatives’ in Julien Chaisse et al (eds.), Handbook of International Investment Law and Policy (Springer, 2021), (accessed 13 April 2021).

84 OHCHR, ‘OHCHR Accountability and Remedy Project: Improving Accountability and Access to Remedy in Cases of Business Involvement in Human Rights Abuses’, (accessed 13 April 2021).

85 Businesses are good at turning models of innovation into models of irresponsibility. Crane et al, for example, identify four innovative business models of modern slavery: risk reduction, asset leveraging, evading legal minimums, and workers as consumers; Andrew Crane et al, ‘Confronting the Business Models of Modern Slavery’ (2021) Journal of Management Inquiry, (accessed 13 April 2021).

86 Deva, Surya, ‘Treating Human Rights Lightly: A Critique of the Consensus Rhetoric and the Language Employed by the Guiding Principles’ in Surya Deva and David Bilchitz (eds.), Human Rights Obligations of Business: Beyond the Corporate Responsibility to Respect? (Cambridge: Cambridge University Press, 2013) 78, 8688 CrossRefGoogle Scholar.

87 See Brinks, Daniel et al (eds.), Power, Participation, and Private Regulatory Initiatives: Human Rights under Supply Chain Capitalism (Philadelphia: University of Pennsylvania Press, 2021)CrossRefGoogle Scholar.

88 The current ‘inequality is the product of a flawed and exploitative economic system, which has its roots in neoliberal economics and the capture of politics by elites’. Oxfam International, The Inequality Virus (London: Oxfam International, 2021) 11. See also Thomas Piketty, Capital and Ideology, translated by Arthur Goldhammer (Belknap Press of Harvard University Press, 2020).

89 See ESCR-Net, ‘Corporate Capture Project’, (accessed 13 April 2021); Centre for Constitutional Rights, ‘Corporate Capture’, (accessed 13 April 2021).

90 Deva, Surya, ‘Business and Human Rights: Time to Move Beyond the “Present”?’ in César Rodríguez-Garavito (ed.), Business and Human Rights: Beyond the End of the Beginning (Cambridge: Cambridge University Press, 2017) 62, 6566 Google Scholar.

91 Ruggie, John, ‘Global Governance and “New Governance Theory”: Lessons from Business and Human Rights’ (2014) 20 Global Governance 5 CrossRefGoogle Scholar.

92 Nico Krisch, Francesco Corradini and Lucy Lu Reimers, ‘Order at the Margins: The Legal Construction of Interface Conflicts Over Time’ (2020) 9:2 Global Constitutionalism 343, 356.

93 The UNGPs are part of a continuum of BHR standards at the UN level because both what they include and do not include is influenced by the past regulatory initiatives as well as their failures or successes. Surya Deva, ‘The UN Guiding Principles on Business and Human Rights and Its Predecessors: Progress at a Snail’s Pace?’ in Ilias Bantekas and Michael Ashley Stein (eds.), Cambridge Companion to Business and Human Rights Law (Cambridge: Cambridge University Press, 2021) 145, 169–71.

94 Some ‘interface conflicts’ may in fact be desirable to open new pathways for positive change. Krisch et al, note 92.

95 For example, the ‘procedural approach’ of HRDD creates a real risk of ‘cosmetic compliance’. Mares, note 73, 6. To avoid this risk, Shift has proposed ‘seriousness signals’ for regulators. Shift, ‘“Signals of Seriousness” for Human Rights Due Diligence’ (February 2021), (accessed 13 April 2021).

96 Deva, Surya, ‘Business and Human Rights: Alternative Approaches to Transnational Regulation’ (2021) 17 Annual Review of Law and Social Science (forthcoming)CrossRefGoogle Scholar.

97 See Augenstein, Daniel, ‘The Crisis of International Human Rights Law in the Global Market Economy’ (2012) 44 Netherlands Yearbook of International Law 41 Google Scholar.

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