I. Introduction
One significant contribution of the United Nations Guiding Principles on Business and Human Rights (UNGPs)Footnote 1 has been to put beyond debate that business enterprises have a responsibility to respect all internationally recognized human rights throughout their operations.Footnote 2 Debates may continue, however, about the soundness of the normative basis of this minimum responsibility, the nature and extent of the business responsibility, and the efficacy of the main tool prescribed for businesses to discharge this responsibility – human rights due diligence (HRDD) – in achieving the desired outcome in practice. Lack of imagining robust means to hold companies accountable for human rights abuses – especially in weak governance zones, in cases with transnational dimensions or in situations where the relevant states are complicit with businesses – will perhaps remain another legitimate area of debate.
The UNGPs have also inspired evolution of law and policy frameworks in various statesFootnote 3 as well as at the international level.Footnote 4 This raises questions about the relationship of the UNGPs with such legal norms. In particular, the interface of Pillar II of the UNGPs, which enshrines the business responsibility to respect human rights as a social norm, with the legalization of human rights responsibilities of business at the national, regional and international levels would require clarification. At the same time, the COVID-19 pandemic has exposed fundamental flaws of the current economic systemFootnote 5 – from poverty and inequality to gender-based violence, vulnerability of children and migrant workers, digital divide, government repression of civic space in emergencies, climate crisis, and risks posed by new technologies. This in turn raises an inevitable inquiry: whether the current business and human rights (BHR) standards – including the UNGPs – are ‘fit for the purpose’ in transforming the current economic order and disrupting various power structures of injustice.Footnote 6
This article seeks to grapple with two inter-related questions that are likely to assume greater significance in coming years. First, what should be the relation of the Pillar II ‘social norm’ with evolving ‘legal norms’ in the form of mandatory HRDD laws as well as parent companies’ direct duty of care for negligence? Second, how should the UNGPs as ‘soft norms’ inform the evolution of ‘hard norms’, such as the proposed BHR treaty (or other future norms generally) to deal with existing models of corporate irresponsibilityFootnote 7 and other deep-rooted structural challenges inherent in the current economic order?
Asking these questions does not mean that the UNGPs are not useful or that they might not remain relevant in the future. On the contrary: it is because of the important place of the UNGPs in the BHR universe that a ‘critical compass’ should constantly be used to discuss, and conduct further research about, the interface of the UNGPs with the wider regulatory eco-system to ensure that the means do not inadvertently become the ends. This article is an attempt to trigger such discussion and research.
Section II of this article explores the relation of the Pillar II social norm with legal norms in two contexts: the relation of Pillar II with Pillar I laws, and the relation of Pillar II with judicial articulation of the direct duty of care of parent companies. I will argue that these legal norms should align with Pillar II only in a ‘loose manner’: they should draw from and build on the concept of HRDD under Pillar II, but not be constrained by it. A hard or complete alignment of Pillar I legal norms with the Pillar II social norm might in fact be counter-productive, as this could undercut the independent but complementary status of the two pillars. Section III will then analyse the interaction of the UNGPs with the proposed BHR treaty (or other similar future initiatives) to grapple with continuing regulatory challenges in the BHR field. I will argue that the UNGPs should serve only as a ‘starting point’ 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. Not merely hard but more ambitious norms may need to be created and better implemented. The article concludes in section IV with some futuristic thoughts about the UNGPs’ regulatory orbit within the BHR universe.
II. Relation of the Social Norm and Legal Norms
Pillar II of the UNGPs, which lays down the business responsibility to respect human rights and prescribes HRDD as an ongoing process for businesses to discharge this responsibility, is not grounded in legal norms.Footnote 8 Ruggie and Sherman assert that ‘the corporate responsibility to respect human rights under the Guiding Principles … is neither based on nor analogizes from state-based law. It is rooted in a transnational social norm, not an international legal norm’.Footnote 9 Nor was Pillar II meant to be legally binding; rather, it was envisaged to operate as a supra-legal norm co-existing with other (legal) norms. This was perhaps needed to ensure that the Human Rights Council endorsed the UNGPs unanimously and that business associations did not lobby against their endorsement by states.
However, even if ‘the transposition of a state-based legal concept onto the corporate responsibility to respect human rights … is fundamentally inappropriate’,Footnote 10 the business responsibility under Pillar II cannot operate entirely within its own ‘social norm’ compartment created by the UNGPs. Nor could its relationship with other legal norms be one-directional: Pillar II of the UNGPs influencing legal norms but such norms having no impact on how Pillar II is implemented by companies in varied circumstances. There has always been a dynamic relation between ‘law and society’ as well as ‘law and ethics’. The relation is often of a reciprocal influence and complementarity. I will argue that the relation of the Pillar II social norm with related legal norms should be of reciprocal influence and complementarity as well. Such a relation will be possible only if there is a ‘loose alignment’ between the two: whereas a hard or absolute alignment will undermine regulatory dynamism, a complete non-alignment will create regulatory incoherence. How the proposed loose alignment should unfold is unpacked below in two illustrative contexts: relation with Pillar I laws, and relation with judicial articulation of the direct duty of care.
A. Pillar II Social Norm and Pillar I Laws
Unlike Pillar II, the state duty to protect human rights under Pillar I of the UNGPs ‘is grounded in international human rights law’.Footnote 11 This duty ‘is a standard of conduct, not result’ and ‘international law gives states broad discretion as to how to discharge their duty to protect’.Footnote 12 Pillar I recommends that states adopt a ‘smart mix’ of measures, including laws, to foster business respect for human rights.Footnote 13 It also focuses on ‘the diverse array of policy domains through which States may fulfil this duty with respect to business activities’.Footnote 14 However, Pillar I does not expressly recommend that states discharge their duty to protect by institutionalizing mandatory HRDD generally for all businesses: the possibility of HRDD is expressly mentioned only in the specific context of state-owned enterprisesFootnote 15 and business operations in conflict-affected areas.Footnote 16 This perhaps provided several leading Swiss businesses a basis to suggest that a mandatory extraterritorial HRDD law in Switzerland would be inconsistent with the UNGPs.Footnote 17 Such a position triggered a response from Ruggie, asserting that ‘there is no inconsistency in states adopting measures that require businesses to meet their responsibility to respect human rights through legislation’.Footnote 18
Despite Pillar I not tying the duty to protect human rights exclusively to requiring HRDD by businesses, such a connection has inadvertently evolved in many settings. I will argue that this is problematic for several reasons. First, as the concept of HRDD under Pillar II in itself has limitations,Footnote 19 states should employ all ‘appropriate’ means to discharge their duty, instead of using only one tool with known limitations. Second, although the state duty to protect is merely a standard of conduct, when this is used to establish merely a standard of conduct even for businesses, it creates a ‘double layer of the standard of conduct’ and in turn undermines the importance of achieving the result that businesses do not violate human rights in practice. Third, the content of business responsibility under Pillar II may be under-inclusive vis-à-vis states’ obligations under international human rights law. For example, the moral minimum of ‘internationally recognised human rights’ under Principle 12 does not include environmental rights. Nor does it include a specific articulation of human rights of women, children, indigenous persons or persons with disabilities.Footnote 20 Fourth, the entire spectrum of Principle 13 typology of adverse human rights impacts applicable to all businesses and their entire business relationships may not be a suitable candidate for legalization with liability at this point of time;Footnote 21 rather, some appropriate modifications may be necessary.
In my view, Pillar I laws need not be identical to the content of Pillar II in all respects. As long as there is a ‘loose alignment’ with Pillar II,Footnote 22 such laws may vary depending on local conditions and circumstances prevailing in different states or world regions.Footnote 23 In other words, Pillar I laws may be narrower (not covering all companies or all human rights), wider (cover climate change or impose requirements additional to HRDD) or higher (impose strict liability in certain situations or for abuses directly linked to their supply chains) than Pillar II, provided they can be regarded appropriate to discharge the state duty to protect human rights. Businesses would of course need to follow such laws as well as meet their Pillar II responsibility. I analyse this issue further below.
The business responsibility to respect all internationally recognized human rights under Pillar II should be seen as an ‘end’. To achieve this end, Principle 15, which is a foundational principle, provides that ‘business enterprises should have in place policies and processes appropriate to their size and circumstances, including:’Footnote 24 make a policy commitment, conduct ongoing HRDD, and have in place a remediation process. Although HRDD is prescribed as the main means to achieve this end, this need not be the only means – the word ‘including’ implies that these three steps do not exhaust the entire set of measures that businesses should take. Even if HRDD is a standard of means and not of result,Footnote 25 the appropriateness of means taken by businesses should be tested on the touchstone of their likelihood in achieving the identified end. Additional means might need to be employed if the prescribed three means prove to fall short generally or in certain circumstances. Therefore, while enacting laws as part of their obligations under Pillar I, states should go beyond HRRD legislation modelled on Pillar II. States may, for example, extend the scope of the right to information against companies, as done in South Africa,Footnote 26 or proposed in Norway as part of the mandatory HRDD law.Footnote 27 Similarly, a no-fault (strict) liability or adopting a regulatory approach based on the precautionary principle may be appropriate in certain situations. States should also start drawing certain ‘red lines’: it is doubtful whether companies producing products like tobacco could ever respect all human rights,Footnote 28 or whether companies should be prohibited from entering certain markets where no meaningful HRDD (including exercise of leverage) is at all possible.Footnote 29
In short, if states only focused on enacting mandatory HRDD laws as part of their duty under Pillar I and/or merely looked at Pillar II to derive the content of such laws, they may not satisfy the threshold of taking ‘appropriate’ means to discharge their duty to protect human rights under international law. Although the UNGPs ‘should be understood as a coherent whole’Footnote 30 and there are important interlinkages between Pillars I and II,Footnote 31 the two pillars should not end up becoming one.Footnote 32 Pillar II should not be subsumed by Pillar I: rather, the former should stand independent in parallel to any legalization of the human rights responsibilities of business flowing from Pillar I.Footnote 33 Such an ‘independent but complementary’ status of Pillar II will be especially critical in certain situations, e.g., where legalization under Pillar I does not cover all human rights or all businesses, or where mandatory HRDD laws do not provide for remediation.
Moreover, it should be noted that the state duty to protect is neither created nor limited by Pillar I: it is merely elaborated on by Pillar I in a non-exhaustive manner in the specific BHR context. In fact, Pillar I should only be the ‘starting point’ – not the ‘end point’ – for states to discharge their duty to protect against human rights abuses by third parties including businesses. Let me provide two concrete examples for why states should follow the proposed holistic approach. First, if certain elements of the state duty to protect are more developed under regional human rights law, those higher standards should be followed. The Inter-American jurisprudence on the state duty to guarantee human rights, which corresponds with the state duty to protect, is a case in point,Footnote 34 as it requires states to take, among other steps, preventive measures such as training public officials, raising social awareness, and strengthening or creating public institutions.Footnote 35 Second, Principle 2 of the UNGPs arguably sets ‘the bar clearly below the current state of international human rights law’ regarding the extraterritorial obligations of states to discharge their duty to protect human rights.Footnote 36 If states merely looked at Principle 2 and its commentary, they might not be proactive in enacting laws with extraterritorial dimensions. Yet, such extraterritorial laws are needed despite states showing selective and inconsistent political appetite for them.Footnote 37 The real issue is not whether such a duty (not merely power) to act extraterritorially currently exists,Footnote 38 but whether it ought to exist to satisfy the threshold of appropriateness.Footnote 39 International law is dynamic and its principles must evolve as per the changing needs to remain relevant.
B. Pillar II and Judicial Articulation of the Direct Duty of Care
Although there are conceptual differences between human rights law and tort law, the latter has been frequently used to protect human rights.Footnote 40 Torts of negligence, nuisance, privacy, battery, trespass and deceit are prime candidates to hold businesses accountable for various human rights abuses or environmental pollution. Out of these possibilities, the evolution of a direct duty of care of parent companies, as part of the tort of negligence, has raised most hope in seeking at least partial remedy for human rights abuses linked to their subsidiaries.Footnote 41 The direct duty of care cases have succeeded – although mostly at the jurisdictional stage rather than on the meritsFootnote 42 – in several jurisdictions such as the United Kingdom (UK), the Netherlands, Canada and Australia.Footnote 43
What should be the relationship of HRDD under Pillar II and the direct duty of care under the tort of negligence?Footnote 44 Despite specific arguments made by lawyers and/or by civil society organizations (CSOs) in amicus briefs, most decisions in these tort cases have not so far made an explicit reference to the UNGPs or other international human rights standards directly applicable to businesses.Footnote 45 This compartmentalized judicial approach should ideally change in the future, because international human rights law should have a bearing on the nature and extent of the corporate duty of care as well as on what may amount to the breach of such a duty under the tort of negligence. However, even if this judicial approach does not change, these tort decisions would have implications for how businesses conduct HRDD under Pillar II. This will again require a ‘loose alignment’ so that tort law and the UNGPs do not push or pull businesses in different directions. However, such an alignment may be missing as of now, as I will show with reference to two UK Supreme Court decisions.
In Vedanta Resources plc v Lungowe,Footnote 46 the Supreme Court held that the liability of parent companies in relation to the activities of their subsidiaries is not a distinct or novel category of negligence and that it ‘depends on the extent to which, and the way in which, the parent availed itself of the opportunity to take over, intervene in, control, supervise or advise the management of the relevant operations (including land use) of the subsidiary’.Footnote 47 The liability under the direct duty of care principle – which in effect avoids the need to pierce the corporate veil – may also arise for omissions. For example, the parent may incur ‘responsibility to third parties if, in published materials, it holds itself out as exercising that degree of supervision and control of its subsidiaries, even if it does not in fact do so’.Footnote 48
The UK Supreme Court reaffirmed the Vedanta principle in Okpabi v Royal Dutch Shell plc. Footnote 49 The Court reiterated that instead of conducting a ‘mini trial’ at the jurisdictional stage, the focus should only be on whether there is an arguable case.Footnote 50 It also stressed the ‘importance of internal corporate documents’ which ‘may materially add to or alter the evidence relevant to whether the claim has a real prospect of success’.Footnote 51 Perhaps the most important for our purpose was the Supreme Court rejecting the argument that ‘promulgation by a parent company of group wide policies or standards can never in itself give rise to a duty of care’, because foreclosing this option would be inconsistent with the Vedanta principle.Footnote 52 The Court also clarified that it is not the parent’s control over the subsidiary but over the management of the subsidiary’s relevant activities that matters.Footnote 53
The combined effect of Vedanta and Okpabi is that companies would have to be more careful in what they say publicly about their global human rights policies and HRDD processes, how they manage their relation with subsidiaries (especially operations of subsidiaries), and how they document internal discussions about human rights issues. While the UNGPs encourage companies to communicate to various stakeholders how they address their adverse human rights impacts,Footnote 54 the rulings in Vedanta and Okpabi may discourage them to do so, because ‘a company which elects to publish a human rights policy and take steps to implement it will, according to the judgment in Vedanta, assume a duty of care where a competitor which wilfully disregards its responsibility under the UN Guiding Principles will not.’Footnote 55 Even if it is accepted that companies ‘adopt and implement human rights related policies at a group level for a number of reasons’Footnote 56 and ‘taking a hands-off approach may not protect the company under Vedanta’,Footnote 57 this does not negate the existence of some incoherence between soft and hard norms and the consequent ‘catch 22’ situation faced by companies.
In short, if companies know in advance the potential routes of Vedanta liability,Footnote 58 they may avoid taking those routes, even if soft standards like the UNGPs expect them to follow those very routes.Footnote 59 Alternatively, companies may start complying with the UNGPs ‘superficially’ so as not to expose them to potential litigation akin to Vedanta and Okpabi. Either of these two pathways adopted by companies will undermine the value of the UNGPs. To avoid such an outcome, the tension between disclosure/transparency norms and accountability regimes – where public disclosure of human rights information may be seen as creating ‘litigation landmines’ – should be minimized.
In addition to the role that mandatory HRDD laws could play,Footnote 60 I suggest three strategies to minimize such a tension and create a ‘loose alignment’ between the UNGPs and tort litigation (including to hold parent companies accountable for abuses by their subsidiaries or suppliers). First, courts should consider the UNGPs and other international BHR standards while adjudicating tort cases that involve, in essence, business-related human rights abuses. For example, Principle 13(b) of the UNGPs may be used in articulating a duty of care that a company may have for human rights abuses in its supply chains that are ‘directly linked’ to its ‘operations, products or services’.Footnote 61 Similarly, a company may be regarded in breach of its duty of care if it did not put in place appropriate human rights policies and processes and/or did not conduct meaningful human rights due diligence.Footnote 62 However, such a purposive reliance on the UNGPs should be used only to strengthen – and not to narrow – the protection of (human) rights already offered by tort principles. For this reason, it will be problematic if conducting HRDD in itself were to operate as a defence to corporate liability based on the tort of negligence, especially if the harm was caused, or contributed to, by the company in question.Footnote 63
Second, disclosing human rights-related information should not be optional for companies, because non-shareholders have a right to know such information affecting them.Footnote 64 Nor should disclosure by companies be free from quality controls, for states must not be allowed to outsource completely their duty to exercise oversight and enforcement over corporate disclosures to market forces.Footnote 65 From this normative perspective, an over-reliance on the ‘comply or explain’ model or the ‘liability-free disclosure’ model is problematic, because this allows companies to exploit social goodwill but at the same time avoid liability or public scrutiny.
Third, the idea of accountability of companies for human rights abuses related to the entire life cycle of their products or services should be mainstreamed as an integral part of respecting human rights. It will not be unprecedented if lead companies are held liable for human rights abuses linked to their products or services. Strict liability under the products liability regime is a case in point.Footnote 66 If companies cannot monitor (and control effectively) human rights abuses by their subsidiaries or by suppliers, they should perhaps not be allowed to outsource their operations to such business partners simply for efficiency or cost-saving purposes. Profiting from foreseeable human rights abuses should result in some liability.
III. UNGPs’ Interface with the Proposed BHR Treaty
Leaving aside those who do not see the need for any treaty, there have been repeated calls that any future BHR treaty (or perhaps treaties) should align with the UNGPs.Footnote 67 It has also been suggested that the two processes should and could be complementary.Footnote 68 For example, Augenstein et al note that ‘there is an increasing recognition on both sides of the debate that “hard” and “soft” law approaches can play a complementary role’.Footnote 69 However, what does alignment of international legal norms with the UNGPs really mean in practice: should the text of treaty provisions generally (or in relation to HRDD specifically) be identical to that of the UNGPs, or will it suffice if the treaty calibrates appropriately the text of the UNGPs? Moreover, how could the BHR treaty complement the UNGPs?
Ruggie sees ‘no intrinsic contradiction’ between implementing the UNGPs and ‘further international legalization’ in the form of a treaty.Footnote 70 Yet, as a practical way forward, he has argued in favour of ‘narrowly crafted international legal instruments’ as ‘precision tools’ and has identified gross human rights violations as possible candidates for such a treaty.Footnote 71 In a more general context, Ruggie and Sherman have suggested that how HRDD ‘is translated into legislation and regulation is an iterative process that flows from the Guiding Principles but requires far more contextual and textual specificity.’Footnote 72 These views could be interpreted to mean that the BHR treaty need not have a literal alignment with the UNGPs. Such a position will be in line with the ‘loose alignment’ argument advanced in this article, because the conversion of soft-social norms into legal norms as well as the process of multilateral negotiations may require some adaptive borrowing from the text of the UNGPs. For example, if the BHR treaty were to mandate states to ‘encourage all but require only certain’ business enterprises to conduct HRDD, that should still be regarded aligned with the UNGPs. Similarly, if the treaty were to focus only on state-based judicial and non-judicial remedy mechanism (and thus leave out non-state-based grievance mechanisms), that would again satisfy the loose alignment threshold.
As far as complementarity is concerned, Mares argues that the UNGPs–treaty relation can be analysed on two levels: ‘first, the UNGPs as a precursor of the treaty (process complementarity), and second, the two instruments co-existing in a smart policy mix (substantive complementarity)’.Footnote 73 I will propose that from a substantive complementarity perspective, the BHR treaty can complement the UNGPs in two broad ways: basic complementarity, and ambitious complementarity. To achieve the latter outcome, the treaty would have to take the UNGPs only as a ‘starting point’ and build on them a regulatory architecture which can respond effectively to the needs of rights-holders in changing times.
A. Basic Complementarity
The BHR treaty could provide a basic (or low-level) complementarity to the UNGPs by supporting or strengthening their implementation by states, businesses and other stakeholders.Footnote 74 For example, if the treaty included mandatory HRDD provisions, this may encourage states outside Europe to take their Pillar I obligations and also connections between Pillars I and II more seriously. Similarly, by requiring states to ensure that their trade and investment agreements are compatible with their international human rights obligations, the treaty could move the needle in implementing Principle 9 of the UNGPs, which reminds states to ‘maintain adequate domestic policy space’ when pursuing investment treaties or contracts.Footnote 75
So far developing a national action plan on BHR is the primary tool recommended by the UN Working Group on Business and Human Rights, and adopted by states, to implement the UNGPs. This process could also be used to domesticate and implement any future BHR treaty. As Blackwell and Meulen highlight, there is a mutual complementarity relationship between the two processes: national action plans could support the treaty process, as well as the proposed treaty being able to support the implementation of the UNGPs.Footnote 76
O’Brien has proposed a framework convention based on the UNGPs as a model for the BHR treaty.Footnote 77 She argues that such a model would not only allow a marriage between soft law and hard law but also assist in overcoming deficiencies in the current treaty model.Footnote 78 Although there is nothing fundamentally wrong with the framework convention model, it is problematic to tie such a framework agreement exclusively to the text of the UNGPs. The last ten years’ experience of states implementing the UNGPs through national action plans is quite telling: even if we leave aside the ‘lack of action’ element, the sole focus on the UNGPs in drafting these plans often means that states are not even considering many other relevant instruments. In any case, this approach is likely to achieve basic complementarity at best, although O’Brien hopes that ‘this approach would also offer scope to generate new soft and hard law standards on topics of global concern as they emerge, such as systemic human rights challenges posed by big tech, AI, and the platform economy’.Footnote 79 As discussed below, urgency is required in developing more ambitious norms – both soft and hard – which at least give us a realistic chance to challenge, if not eliminate, the current state of corporate impunity.
B. Ambitious Complementarity
The proposed BHR treaty could also complement the UNGPs in a more ambitious way by upgrading the floor set by the UNGPs and/or by filling regulatory gaps that the UNGPs are unlikely to fill, especially in ‘hard cases’.Footnote 80 Some of the potential pathways to achieve this are briefly discussed here. For one, the treaty could expand the ‘minimum’ basket of ‘internationally recognised human rights’ proposed by Principle 12 of the UNGPs. One glaring gap of this minimum is environmental rights and climate change.Footnote 81 The treaty should fill this gap, because protection of the environment or a responsibility to prevent and mitigate climate change does not feature expressly even in the commentary to Principle 12, which provides that ‘business enterprises may need to consider additional standards’ depending on circumstances.
Second, the treaty could add more elements to the four-step HRDD process under Pillar II to ensure that the process does not end up becoming a legitimization exercise for corporate operations. For example, the role of independent trade unions must be central to HRDD process in supply chains. The same could be said about adopting a gender-responsive approach to HRDD, importance of the ‘free, prior and informed consent’ principle for Indigenous peoples, and the role of human rights defenders in both HRDD and remediation. For space constraint or other reasons, Pillar II does not pay adequate attention to these elements, but the proposed treaty should incorporate such elements.
Third, the BHR treaty could contribute to addressing the existing asymmetry between ‘hard rights’ and ‘soft responsibilities’ of business enterprises.Footnote 82 In addition to requiring states to enact mandatory HRDD laws with real teeth, the treaty could mandate states to include legally binding human rights obligations in international investment agreements. This should partly remedy the current asymmetry.Footnote 83
Fourth, strengthening access to effective remedy and corporate accountability is another way in which the treaty could complement the UNGPs in a more ambitious way, as Pillar III or the OHCHR’s Accountability and Remedy projectFootnote 84 has so far made little difference to the situation of affected rights-holders on the ground. The treaty could make some progress in denting the current state of corporate impunity for human rights abuses by establishing an implementation mechanism at national as well as international levels, by creating a legal basis for mutual legal assistance and judicial cooperation in cases with transnational dimensions, and by crafting concrete pathways for states to remove barriers to access to remedy.
Fifth, it seems that the UNGPs do not challenge or confront the existing structure of irresponsibility and inequality utilized by businesses to their advantage.Footnote 85 Rather, they consciously work around difficult or contentious issuesFootnote 86 and do not seek to ‘rock the boat’ of the current economic order. However, some of the existing as well as future challenges in the BHR field might not be overcome without dismantling current structures employed by businesses to entrench irresponsibility and inequality. The architecture that normalizes exploitative global supply chains,Footnote 87 economic inequalityFootnote 88 and corporate capture of the stateFootnote 89 is a case in point. The proposed BHR treaty (and perhaps a series of soft and hard instruments) in the future should look at introducing more systemic and radical changes to the existing asymmetrical relationship of rights-holders with states and businesses in a free market economy.
Fulfilling the ambitious complementary role would require the BHR treaty to go beyond the text of the UNGPs and operate as a ‘logical extension’ of the UNGPs.Footnote 90 In fact, I will argue that all future norms in the BHR field – in the form of a treaty or otherwise – should take the UNGPs as a ‘starting point’ but not as the ‘end point’.
IV. Conclusion
The UNGPs provide a common platform for states, businesses, civil society and other stakeholders to play a role in promoting business respect for human rights. The value of such a platform rooted in the ‘new governance theory’ should not be under-estimated.Footnote 91 Moreover, because of an unprecedented push for alignment with the UNGPs and their ‘gravitational force’,Footnote 92 the regulatory orbit of the UNGPs has been expanding continuously. At the same time, the UNGPs are not the sole regime in the regulatory universe of BHR. Nor were they parachuted into the BHR field from nowhere.Footnote 93 This scenario raises legitimate issues about the interface among various norms emanating from different regulatory regimes within the BHR universe. This article has examined this interface in two specific contexts: relation of the Pillar II social norm and Pillar I laws, and relation of the UNGPs as soft norms and the proposed BHR treaty as hard norms.
I have contended that there should be only a ‘loose alignment’ between social and legal norms as well as between soft and hard norms.Footnote 94 The purpose of such a loose alignment should be to achieve an optimal level of coherence without excluding opportunities of regulatory innovation. While a ‘complete or literal’ alignment of all other norms with the UNGPs may appear tempting, it will be problematic for several reasons. In addition to stifling regulatory dynamism required to deal with ever-evolving challenges in the BHR field, this will reinforce and perpetuate limitations of the UNGPs. It may also create a false sense of progress being made merely by such alignment. In fact, it is also arguable that if all regulatory regimes revolve around the UNGPs seen as the centre of the BHR universe, this may also be inconsistent with the spirit of polycentric governance.
Moving beyond the ‘end of the beginning’ would not only require a better implementation of the UNGPs in years to come but also a creation of outcome-oriented norms (including hard law) at all levels.Footnote 95 States and businesses should not hide behind the UNGPs to prevent or slow down the legalization of human rights responsibilities of business or invoke them to freeze the evolution of more ambitious BHR norms required to meet newer or systemic challenges. New norms such as the proposed BHR treaty should have a mutually complementary relation with the UNGPs with a view to creating additional (dis)incentives and accountability tools for cumulative effectiveness.
Multiple strategies would be needed to build an effective regulatory eco-system which embodies ambitious norms capable of bringing transformative and systemic changes to the current economic order. I note three such strategies here. First, greater attention should be paid to the needs of rights-holders, not merely to what the duty bearers are willing to supply to respect, protect and fulfil human rights in relation to business. Second, lived experiences and expectations of the Global South should feature more prominently in the global BHR discourse. Different (or at least additional) regulatory approaches may, for example, be required to promote respect for human rights in the informal economy or to deal with situations where states offer no viable option to protect against human rights abuses by business. Third, as not all deficits in the role of states in regulating corporate behaviour could be filled by turning to non-state actors,Footnote 96 ‘recovering the state’ from the influence of corporate capture in the neo-liberal market ideology should also be part of the BHR project.Footnote 97 BHR issues should be embedded into political processes and social movements at all levels to build bottom-up a political will to act, rather than merely lamenting the lack of such will.
