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I have been working on the production of a comprehensive commentary of the United Nations Guiding Principles for Business and Human Rights. This is a humbling task. It follows the production of both an official commentary, written in tandem with the UNGP itself, and a collective commentary of the UNGP undertaken by some of the most distinguished students of other fields of human rights, business, and its related fields of academic study ( The UN Guiding Principles on Business and Human Rights: A Commentary (Barnali Choudhury (ed); Edward Elgar, 2023).
I am at a point where I can start vetting portions of the draft. I hope to share those discussion drafts with a wider audience in hopes of getting feedback. In these posts I provide a short summary of the draft chapter and a link t access a 'pdf' version. All draft chapters may be found on my Coalition for Peace & Ethics Website website at UNGP Commentary Page HERE.
Part I (On the Making of the UNGP), organized in five chapters, introduced the reader to the background, context, and sources that contributed to the drafting and eventual endorsement of the UNGP. Parts II through V then consider in detail the text and interpretation of the substantive provisions of the UNGP. Part II considered the UNGP's General Principles; Part III examines the State duty to protect human rights (UNGP Principles 1-10); Part IV then addresses commentary to the corporate responsibility to respect human rights (UNGP Principles 11-24); and Part V considers the remedial principles (UNGP Principles 25-31). |
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The Foundational Principles of the UNGP’s Pillar 2 corporate responsibility to respect human rights provide the conceptual framework around which the operational principles of human rights due diligence as the central structural element of Pillar 2 (UNGP Principles 16- 21 are built, modified by principles of remediation (UNCO Principle 22) and context (UNGP Principles 23-24).[1] Together these rationalize the norms, policies, and processes within and through which private markets are expected to operate—one in which the principle of economic welfare maximization, the autonomy of legal persons, and of individuals are respected, but now managed within a system grounded in a more vigorous compliance regime. Compliance with what? Compliance with the normative imperatives of human rights as they affect economic transactions. Compliance is undertaken through the expectations of Pillar 2 in markets, but also through the fulfillment by States of their duty to protect human rights under Pillar 1 through smart mixes of public power (policy and regulation; two different forms of power) directed to actors in private markets that may operate transnationally and through production chains.[2] These inter-relationships serve as the foundation for the connection, and separation, between Pillars 1 and 2—what SRSG Ruggie referenced as polycentricity of interlocking systems of public and private power.[3] Polycentricity, essentially anarchic in the sense of imposing order without a center, revolves around alignment between spheres of public and private collective governance; beyond though dependent on societal constitutionalism,[4] more anarchic that a fully formed system of entangled legalities, or transnational legal ordering,[5] or as much as it is grounded in polycentric mimesis[6] by way of the ordering premise of business and human rights.[7]
Pillar 2, Like Pillar 1, then, each acquires both its power and its autonomy through their adherence to this structuring principal of polycentric mimesis. That is evidence not merely in the organization of the principles in each Pillar—each divided between foundational and operational principles—but also in their internal structuring. The foundational principles themselves each starts with the declaration of the ordering premise of each Pillar. That is followed by a set of elaborating principles that together constitute the normative structures within which it is possible to appropriately manage the scope of possible variations in operationalization of duty (State) and (enterprise and other collectives). Lastly, that parallel mimetic structuring is embedded within pathways to structural coupling—for example, human rights due diligence might be transposed from the Pillar 2 to Pillar 1 and reconstituted as a set of mandatory legal measures bounded by law, yet at the same time, the expectations built into the autonomous obligations of human rights due diligence, the normative basis of which is autonomous of national public legality, continues unabated.[8]
Likewise there is a connection between UNGP Principle 3 (General State Regulatory and Policy Functions)[9] and UNGP Principle 16 (Policy Commitment), the object of the Commentary in this chapter. Both serve as bridging provisions. Each is focused on structuring the forms and trajectories of the operational expression of their respective foundational principles. UNGP Principle 3 creates the framework through which States may exercise their political authority (in and through law and policy) to fulfill their foundational duty (specified in UNGP Principles 1-2) “to foster business respect for human rights.”[10] UNGP Principle 16 provides the institutional and textual form within which an enterprise can “meet their responsibility to respect human rights”[11] elaborated in Pillar 2’s foundational principles (UNGP Principles 11-15). While the foundational principles describe an expectation to develop policies to fulfill the foundational premises of Pillar 2 in UNGP Principle 15, UNGP Principle 16 actually develops the way that expectation (policy commitment) is expressed.
[1] Discussed Chapter 12.
[2] Discussed Chapters 6-9.
[3] Concept discussed at Chapter 3.2; see also Enrico Partiti, ‘Polycentricity and Polyphony in International Law: Interpreting the Corporate Responsibility to Respect Human Rights,’ (2021) 70(1) International and Comparative Law Quarterly 133-164; Larry Catá Backer, ‘The Structural Characteristics of Global Law for the 21st Century: Fracture, Fluidity, Permeability, and Polycentricity,’ (2012) 17(2) Tilburg Law Review 177-199.
[4] See Gunther Teubner, ‘Societal Constitutionalism: Nine Variations on a Theme by David Sciulli,’ in Paul Blokker and Chris Thornhill (eds), Sociological Constitutionalism (CUP. 2017) 313-340.
[5] See Nico Krisch, ‘Entangled Legalities in Postnational Space,’ (2022) 20(1) International Journal of Constitutional Law 476-506.
[6] The focus here is on imitation or representation sourced in distinct, multiple network of autonomous but decentralized entities. Cf., Larry Catá Backer, ‘ The Soulful Machine, the Virtual Person, and the “Human” Condition: An Encounter with Jan M. Broekman, Knowledge in Change: The Semiotics of Cognition and Conversion (Cham, Switzerland: Springer Nature, 2023),’ (2024) 37 International Journal for the Semiotics of Law 969-1083.
[7] Larry Catá Backer, ‘Transnational Corporations' Outward Expression of Inward Self-Constitution: The Enforcement of Human Rights by Apple, Inc.,’ (2013) 20(2) Indiana Journal of Global Legal Studies 805-879.
[8] Compare the Commentary of Chapters 6-7, with Chapter 12.
[9] Discussed Chapter 8.
[10] UNGP Principle 3 Commentary.
[11] UNGP Principle 15; discussed Chapter 12.
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The Chapter 13 discussion draft may be accessed directly HERE (where revisions earlier chapters may also be accessed). The text of the draft of Chapter 13 as of the time of this posting also follows below along with its table of contents.
13
13.1 Introduction
13.2 UNGP Principle 16 Text
13.3 UNGP Principle 16: Commentary on Text
13.4 UNGP Principle 16: Official Commentary
13.5 UNGP Principle 16: Authoritative Interpretation/Commentary
13.5.1 The 2010 Draft The Travaux Préparatoires and the 2010 Draft
13.5.2 The Travaux Préparatoires and the Pre-Mandate Text
13.6 Other Glosses
13.7 Conclusion
___________________
13.1 Introduction
The Foundational Principles of the UNGP’s Pillar 2 corporate responsibility to respect human rights provide the conceptual framework around which the operational principles of human rights due diligence as the central structural element of Pillar 2 (UNGP Principles 16- 21 are built, modified by principles of remediation (UNCO Principle 22) and context (UNGP Principles 23-24).[1] Together these rationalize the norms, policies, and processes within and through which private markets are expected to operate—one in which the principle of economic welfare maximization, the autonomy of legal persons, and of individuals are respected, but now managed within a system grounded in a more vigorous compliance regime. Compliance with what? Compliance with the normative imperatives of human rights as they affect economic transactions. Compliance is undertaken through the expectations of Pillar 2 in markets, but also through the fulfillment by States of their duty to protect human rights under Pillar 1 through smart mixes of public power (policy and regulation; two different forms of power) directed to actors in private markets that may operate transnationally and through production chains.[2] These inter-relationships serve as the foundation for the connection, and separation, between Pillars 1 and 2—what SRSG Ruggie referenced as polycentricity of interlocking systems of public and private power.[3] Polycentricity, essentially anarchic in the sense of imposing order without a center, revolves around alignment between spheres of public and private collective governance; beyond though dependent on societal constitutionalism,[4] more anarchic that a fully formed system of entangled legalities, or transnational legal ordering,[5] or as much as it is grounded in polycentric mimesis[6] by way of the ordering premise of business and human rights.[7]
Pillar 2, Like Pillar 1, then, each acquires both its power and its autonomy through their adherence to this structuring principal of polycentric mimesis. That is evidence not merely in the organization of the principles in each Pillar—each divided between foundational and operational principles—but also in their internal structuring. The foundational principles themselves each starts with the declaration of the ordering premise of each Pillar. That is followed by a set of elaborating principles that together constitute the normative structures within which it is possible to appropriately manage the scope of possible variations in operationalization of duty (State) and (enterprise and other collectives). Lastly, that parallel mimetic structuring is embedded within pathways to structural coupling—for example, human rights due diligence might be transposed from the Pillar 2 to Pillar 1 and reconstituted as a set of mandatory legal measures bounded by law, yet at the same time, the expectations built into the autonomous obligations of human rights due diligence, the normative basis of which is autonomous of national public legality, continues unabated.[8]
Likewise there is a connection between UNGP Principle 3 (General State Regulatory and Policy Functions)[9] and UNGP Principle 16 (Policy Commitment), the object of the Commentary in this chapter. Both serve as bridging provisions. Each is focused on structuring the forms and trajectories of the operational expression of their respective foundational principles. UNGP Principle 3 creates the framework through which States may exercise their political authority (in and through law and policy) to fulfill their foundational duty (specified in UNGP Principles 1-2) “to foster business respect for human rights.”[10] UNGP Principle 16 provides the institutional and textual form within which an enterprise can “meet their responsibility to respect human rights”[11] elaborated in Pillar 2’s foundational principles (UNGP Principles 11-15). While the foundational principles describe an expectation to develop policies to fulfill the foundational premises of Pillar 2 in UNGP Principle 15, UNGP Principle 16 actually develops the way that expectation (policy commitment) is expressed.
13.2 UNGP Principle 16 Text
UNGP Principle 16 Text consists of a general direction to create a policy instrument, followed by the specification of its contents divided into five (5) parts.
16. As the basis for embedding their responsibility to respect human rights, business enterprises should express their commitment to meet this responsibility through a statement of policy that:
(a) Is approved at the most senior level of the business enterprise;
(b) Is informed by relevant internal and/or external expertise;
(c) Stipulates the enterprise’s human rights expectations of personnel, business partners and other parties directly linked to its operations, products or services;
(d) Is publicly available and communicated internally and externally to all personnel, business partners and other relevant parties;
(e) Is reflected in operational policies and procedures necessary to embed it throughout the business enterprise.
* * *
13.3 UNGP Principle 16: Commentary on Text
UNGP Principle 16 is fairly straightforward. There are however, several points of ambiguity. That ambiguity connects the instructions in UNGP 16 with the flexibility and factor analysis (context/size/severity) of UNGP Principle 14.
The text of UNGP Principle 16 starts with the limitation of its own scope and object. The provisions set out in the text of UNGP Principle 16 are intended as “the basis for embedding” the enterprise’s responsibility of enterprises to respect human rights. Embedding is an odd term, even in English. It, like the UNGP itself, is a creature of the 21st century. Its etymology suggests its curious pathway to the meaning it is meant to be encased in for purposes of giving meaning to the construction of the expectation/directive that is UNGP Principle 16.[12] From its 18th century meaning ( to place or lay on a bed), it assumed a more technical meaning with the coming of the Darwinian age, figuratively referencing fossils in rocks. It was only with the Iraq war of 2003 that it acquired a meaning close to that appropriated to the UNGP—to place someone (e.g., a journalist) within a military unit in war. Here it is meant to reference the placing of something (the policy commitment) within the enterprise itself where it might do its “work.” The word, however, requires a steadier foundation—perhaps one given by the Spanish and French versions of UNGP Principle 16. The Spanish version uses the operative term asumir; the French version uses the term ancrer. Asumir translates into English as a cluster around references to assume, take on, undertake or adopt something (in this case the policy commitment).[13] In contrast, the French word used, ancrer, speaks to anchoring rather than assuming or placing. [14]The word anchor, itself, derives from the Greek ankyra –a contextually or figuratively heavy object or one with properties, like a hook, that holds something else more or less in place. Both go beyond the odd English passive word selected for the English version of the UNGP Principle 16 operative term (embed), but in different ways; together, perhaps, they better describe exactly what is meant to be undertaken in UNGP Principle 16.
With that in mind it is possible to parse the way that the operative text—“embedding”—is then applied to its objects. First, the thing to be embedded, the “basis for embedding” is a “statement of policy.” Second, the “statement” is to embed a specific “commitment”. Third, the “commitment” to be “embedded” in the “statement” touches on the enterprise’s responsibility to respect human rights.
All of that points the reader to the operational specifics that make up the rest of UNGP Principle 16. These consist of five distinct elements. The first is that the policy commitment is to be “approved at the most senior level of the business enterprise.”[15] The second is that the policy commitment’s specifics “is informed by relevant internal and/or external expertise.”[16] That suggests a range of possibilities, from the sort of “expert consultation” that is deeply naturalized in and as the cultures of consultation within the UN apparatus (public law based consultation),[17] or the sort that is required by law of administrative organs of States, to those that are already naturalized within the culture of the enterprise, to the consultation and hiring of experts. The third makes explicit at the operational level the importance of the “directly linked” elements of the corporate responsibility the conceptual basis of which was elaborated in UNGP Principle 13.
UNGP Principle 16( c), then requires that the policy commitment stipulate “the enterprise’s human rights expectations of personnel, business partners and other parties directly linked to its operations, products or services.” Again, the English, Spanish and French versions use related but different words. While the English language version uses the term stipulate (demand or specify), the Spanish language version uses the term establezca (to establish or set out); and the French language version uses the term énonce (to state, announce, or declare). They are each close enough but not quite the same. The text likely means all of these words—stipulate, establish, specify, announce, establish—each word understood broadly in context. Still, where this is then “embedded” in the private law of the enterprise through the policy commitment, interpretation of the expectation may become of more importance.
UNGP Principle 16(d) specifies that an additional factor necessary to express an enterprise’s commitment in its policy commitment is to make the resulting commitment “publicly available and communicated internally and externally.” That communication has a target audience—“all personnel, business partners and other relevant parties.” Othe relevant parties, at its limit can include everyone on Earth (and eventually elsewhere). The passive component touches on making the policy commitment widely available, that is to place it in the stream of communication where it might be accessed by those seeking it. The active component creates an expectation of positive communication with a specified group of stakeholders: “all personnel, business partners and other relevant parties. The question, then, with respect to this element is to try to understand how an enterprise gauges relevance for purposes of UNGP Principle 16(d). It also emphasizes that transparency has both an active and possible component.
If UNGP Principle 16(d) focuses on communication, UNGP Principle 16(e) focuses on operationalization. It provides that the policy commitment is “reflected in operational policies and procedures” at least to the extent necessary to “embed” (that word again but now used in a different sense—to incorporate (explicit in the French version); inculcate in the Spanish version) the policy commitment “throughout the business enterprise.”
The five expectations run the range of the essential operational elements of a human rights due diligence system. First it requires an authoritative statement that is expected to have mandatory effect within the enterprise (that is serve as the public law of private enterprises).[18] Second, it must be relevant to the enterprise by actively transposing or translating policy into the language, processes and cultures of the enterprise through a process of democratic or at least technocratic consultation of some sort. Third, the core of the policy commitment must specified the normative framework around which the contextualized enterprise responsibility to respect is to be implemented. That normative statement is both contextual and constrained by the expectations of the foundational Principles of UNGP Principles 11-15. Fourth, the policy commitment must be made available to those who seek it and it must affirmatively be communicated to a specific set of actors in the enterprise. Last, The normative expectations must be transposed into the operations of the enterprise everywhere it operates directly or through its business relations.
All of this, of course, must be read against the expectations of the UNGP’s foundational Principle 15. First is the understanding that the policy commitment statement will vary substantially form one industry to another and from one enterprise to another. There are no one size fits all policy commitment forms—other than that all must be true to the fundamental requisite of Pillar 2 (expressed in general form as UNGP Principle 11), that enterprises must respect human rights (the scope of which is described in UNGP Principle 12) by putting in place systems that are meant to prevent, and if not prevent, then to mitigate or remedy adverse human rights impacts from their operations, the scope of which is described in UNGP Principle 13, as a function not merely of operational context of the nature and severity of the adverse impact (UNGP Principle 14).
13.4 UNGP Principle 16: Official Commentary
The Official Commentary adds detail—and intention—to the text of UNGP Principle 16. Like the Commentary to UNGO Principle 3,[19] UNGP Principle 16’s Commentary appears intended to fill in interpretive gaps. However because it is Commentary is not the principal text, that gap filling may be persuasive and authoritative, but not mandatory in approaches to textual interpretation. That is especially the case where those seeking to interpret and apply the UNGP adhere to the normative rule that text speaks for itself and that the intention, even of its drafters, may pay only a secondary role in either interpretation or application.[20] With that understood, UNGP 16 Commentary does provide valuable insight, available to those who view it as useful, in clarifying textual references and a s guide to implementation.
First, UNGP Principle 16 adopts a broad understanding of the meaning of the term “statement,” at east as to form. The Commentary states that the term “is used generally, to describe whatever means an enterprise employs to set out publicly its responsibilities, commitments, and expectations.” In that sense the Commentary seeks to make clear that while the policy commitment is meant to function internally, it is also, and perhaps equally, a public facing document. That intention carries consequences. The first, and likely most important, is that public facing documents will necessarily be stripped of any proprietary information. That includes technology as well as know hoe aspects of any policy that are not meant to be public. The result, for a robust policy with inward facing objectives would likely be the production of some sort of policy statement bifurcation—a public facing policy commitment that consists of general statements and aligns with the broad text of the UNGPs, and then a more detailed inward facing set of policy documents that touch on implementation. There is nothing in the text or the Commentary of UNGP 16 that suggests that the policy commitment must all be shoved into a single public facing document. Second, if this sort of public/private bifurcation is already part of the enterprise’s standard operating procedure for policy documents of this kind, the Commentary effectively provides a basis un the UNGP for continuing the practice. Third, the internal/external divide is itself reinforced by the text of UNGP Principle 16(d).
The UNGP Principle 16 Commentary amplifies this understanding of pragmatically differentiated double text. First, with respect to public facing communications the UNGP Principle 16 Commentary amplifies two points. The first is that there is a positive obligation to make the policy statement available. The second is that this positive obligation is, at its core, targeted to key constituencies: “entities with which the enterprise has contractual relationships; others directly linked to its operations, which may include State security forces; investors.” The positive obligation to communicate positively with “affected stakeholders” is contingent. It arises, according to the Commentary, “in the case of operations with significant human rights risks.” This creates something like a recursive loop within the structures of human rights due diligence:[21] the system operates on the basis of assessment of potential and actual adverse human rights impacts; impacts may be actual or potential and it is likely that enterprise operations will likely produce a stream of transaction or operation-related impacts of all sorts (potential, present, already happened); it thus creates an ongoing expectation of outward communication targeting stakeholders that, potentially, can be ongoing rather than episodic; and the failure to communicate the policy commitment statement to affected stakeholders may itself constitute a contribution to adverse impact that itself must be addressed.
Second, with respect to internal communications, the statement is to be distributed to all personnel, but in a manner consistent with routine enterprise practice (as to form and means at least). However, the Commentary recognizes that for private facing articulations of the policy commitment statement, it will be paired with “related policies and procedures.” Together, these “ should make clear what the lines and systems of accountability will be, and should be supported by any necessary training for personnel in relevant business functions.” This suggests, in turn, that the public and private facing statements will necessarily not be the same. Public facing communication might be understood as focused on raising awareness; internal communication is regulatory in effect and morse specific; external communication is expected to be more formal; internal communication more informal and regulatory in form and far more pervasive.[22] External comm One might also plausibly (though not invariably) read this as suggesting that lines and systems of accountability need not be disclosed in the public facing document, nor, for that matter, the policies and operation of training. The limits to that bifurcation are further developed in the operational provisions of human rights due diligence in UNGP Principle 21.[23]
The UNGP Principle 16 Commentary also speaks to the expectation that the policy commitment statement be the product, at least in part, on consultation. Both the Commentary and text of UNGOP Principle 16 have nothing to say about a general consultation, for example, with identified stakeholders, state agencies, and others. That does not suggest that the policy commitment statemen may not engage in such broader, and to some extent more democratic, consultation. But it does suggest that the expectation for the development of the statement ought to focus on expert consultation. That, in turn, suggests that the policy commitment statement itself is to be understood as a technical and compliance/regulatory document, that is that it serves a function other than to declare intention. In addition, the Commentary suggests that the level of expertise necessary to development the policy commitment statement “will vary according to the complexity of the business enterprise’s operations.” That aligns UNGP Principle 16 with the context/complexity factors balancing approach of UNGP Principle 14.[24] The Commentary also makes clear that the enterprise has a broad, and contextually relevant, discretion. The Commentary suggests that “Expertise can be drawn from various sources, ranging from credible online or written resources to consultation with recognized experts.”
The Commentary emphasizes two other points of guidance. The first touches on the use of the policy commitment statement instrumentally in the service of internal policy coherence. That policy coherent is meant to be aligned with the policy coherence expectations of States under Pillar 1.[25] In the context of Pillar 1 that may require alignment through the exercise of UNGP Principle 3 regulatory/policy mechanisms. In the context of UNGP Principle 16 and the policy commitment statement, it requires alignment with the expectations set out as the fundamental principles of human rights due diligence at UNGP Principles 11-15. The Commentary includes examples of coherence instruments to aid in created intra-enterprise policy coherence, on the one hand, and enterprise-state coordination on the other.[26]
The Commentary ends where the text of UNGP Principle begins—with a discussion of the siting of the institutional generation of the statement, that is from where within the enterprise’s organizational structure the statement ought to be generated for effective “embedding.” The object of the Commentary is to underscore and use the hierarchical ordering of most enterprises to the advantage of the object of the statement itself—to use it like a normative bacillus that must penetrate all of the body of the enterprise itself; a sort of crude biopolitics.[27]
Taken together it becomes clear that the UNGP Principle 16 policy commitment statement is meant to serve as a “Textual” or “performative” nexus point or space of several converging objectives. The first is aligned to UNGP 3; UNGP Principle 16’s Statement is meant to serve as the vessel through which the enterprise’s system wide “smart mix” of private regulatory and policy measures is to be articulated. That is, the statement is to serve as the “one stop shop” of regulatory measures,[28] a centralized textual “location” where all relevant stakeholders may access rule, norm, process, and the realization of their human rights based expectations within the context of the business of the enterprise (recalling that it is the business of the enterprise that is the source of positive and negative human rights impacts. Indeed, the concept of “one stop shop” has been a central element of the evolution of both public[29] and private administration for almost a century, and its use as a vehicle for the addition of a human rights element produces yet another example of the utility of the “principled pragmatism” driving the choices that the UNGP represents in terms of structuring elements.[30]
The second touches on the authoritativeness of the interposition of this regulatory/compliance efface—the privileging f human rights architectures onto enterprise business cultures is to be undertaken at the highest levels of authority within enterprise governance hierarchies.[31] This “tone at the top” was a critical element to the framing of human rights due diligence systems. At the same time it was to serve a larger purpose, one again aligned to principled pragmatism—to use corporate culture enhancing mechanisms to reshape corporate culture itself,[32] assuming it was amenable to this, in ways that mirrored the reshaping of public regulatory cultures, around human rights.[33]
The third touches on the instrumentalization of communication as an element of regulation and compliance. That also aligned the structures of the normative and operational elements of human rights due diligence within the broader context of the corporate responsibility to respect human rights to the similar structures of Pillar 1’s State duty to protect, reinforcing the connection elaborated in UNGP Principles 4-6. The fourth touches on the critical element of policy coherence. UNGP Principle 16 uses the policy commitment statement as a coordinating instrument of coherence. That naturalizes the function within the traditional contemporary environments of private sector enterprise governance. In the process it aligns the use and focus of the statement with the Pillar 1 coherence expectation set out in UNGP Principles 8-10. Lastly, the Statement serves as a nexus point for the technocratic project that human rights due diligence is meant to become. The central element of this is consultation—not mass consultation, though that is permitted. Rather expert consultation becomes the centering element of system construction and operation.[34] Both enterprise and the masses are objects that just be studied and from that point worked on; their development of values based behaviors is assumed best guided by knowledge centers, specialized knowledge centers that can help move along a project of principled pragmatism by inserting experts in the system as the font of “principle”.[35] This is not unique to business and human rights but has emerged as the organizing element of contemporary institutional governance.
13.5 UNGP Principle 16: Authoritative Interpretation/Commentary
13.5.1 The 2010 Draft UNGP
What became UNGP Principle 16 in its final form was circulated in the Draft UNGP as its Principle 14.[36] The final form of UNGP Principle 16 diverged from its draft form in some respects. These differences may shed light on the meaning and plausible interpretation of text, or at least limit the scope of the plausibility of textual interpretation and application.
First, there is a small change to the opening of the principle. The 2010 Draft described the policy commitment statement as “the foundation for embedding” enterprise responsibility to respect. In the final version, that was changed to “basis for embedding.” What difference between foundation and basis? Foundation generally tends to be used in this context to reference a basis on which some the thing is placed or is supported; especially so in the use of legal English.[37] Basis, on the other hand can mean foundation, specifically a thing or concept on which some other thing or concept acquires its form or is established as to its properties or consequences or form; it can also reference an underlying condition to state of affairs.[38] The words tend to be used interchangeably, but some argue that foundation is best used to reference the groundwork for something else, where basis ought to be used to refer to fundamental principles or underlying truth. In this case both work at a general level—the statement of policy commitment represents to some extent both the ground work for embedding the corporate responsibility; but it might also be understood as the basis in the sense of the rationalization of foundational principles rationalized for a specific enterprise.
Second, as originally drafted UNGP Principle 16(b) was drafted as “is informed by appropriate consultation with relevant internal and external expertise” became in the final version “is informed by relevant internal and/or external expertise.” One suspects that the change was meant to “tighten up” the language. People like to work to do that—shifting around words and in the 21sy century using less words to mean more things. But sometimes that has a way merely of interiorizing ambiguity and complexity. In this case the effect is not greater ambiguity grounded in linguistic astringency but in a broader scope of action by omission of text. First the implication that such expertise may only be had by way of consultation (requiring definition of consultation) is eliminated. Instead the focus is on the production of expertise rather than on the way it is produced. Second, by stripping away what might wind up being a post hoc contestable “appropriateness” standard, the final version of UNGP Principle 16 appears to permit the enterprise a substantial leeway in determining the scope of information generation, as well as its form. It also opens a space of greater consultation over time, in line with the notion of human rights engagement as shaped not merely by context, complexity, capacity and severity, but by tome and circumstance as well.
Third, the final version of what became UNGP Principle 16(c) deviated from the text of the 2010 Draft UNGP Principle 14(c) by adding to the final version “ and other parties directly linked to its operations, products or services.” This made explicit the extension, or at least the clarification, of the extent of the responsibility along supply/production chains to include all relevant aggregations of economic activities that are connected in any way to the task of contributing to that production.
Fourth, the Commentary to the 2010 Draft UNGP made clearer that the policy commitment statement was not intended to be the sole expression of business and human rights operational rules, norms and policies.[39] That made clear the intent of both 2010 Draft UNGP Principle 14(e) and the final version UNGP Principle 16(e).[40]
13.5.2 Travaux Préparatoire and Pre-Mandate Text
The interpretation of UNGP 16 might be best understood against the backdrop of the SRSG’s extension of mandate by the UN Human Rights Council[41] and several of the SRSG’s Reports to the Human Rights Council.[42]
Taken together it becomes clear that the UNGP Principle 16 policy commitment statement is meant to serve as a “Textual” or “performative” nexus point or space of several converging objectives. The first is aligned to UNGP 3; UNGP Principle 16’s Statement is meant to serve as the vessel through which the enterprise’s system wide “smart mix” of private regulatory and policy measures is to be articulated. That is, the statement is to serve as the “one stop shop” of regulatory measures,[43] a centralized textual “location” where all relevant stakeholders may access rule, norm, process, and the realization of their human rights based expectations within the context of the business of the enterprise (recalling that it is the business of the enterprise that is the source of positive and negative human rights impacts. Indeed, the concept of “one stop shop” has been a central element of the evolution of both public[44] and private administration for almost a century, and its use as a vehicle for the addition of a human rights element produces yet another example of the utility of the “principled pragmatism” driving the choices that the UNGP represents in terms of structuring elements.[45]
The second touches on the authoritativeness of the interposition of this regulatory/compliance efface—the privileging f human rights architectures onto enterprise business cultures is to be undertaken at the highest levels of authority within enterprise governance hierarchies.[46] This “tone at the top” was a critical element to the framing of human rights due diligence systems. At the same time it was to serve a larger purpose, one again aligned to principled pragmatism—to use corporate culture enhancing mechanisms to reshape corporate culture itself,[47] assuming it was amenable to this, in ways that mirrored the reshaping of public regulatory cultures, around human rights.[48]
The third touches on the instrumentalization of communication as an element of regulation and compliance. That also aligned the structures of the normative and operational elements of human rights due diligence within the broader context of the corporate responsibility to respect human rights to the similar structures of Pillar 1’s State duty to protect, reinforcing the connection elaborated in UNGP Principles 4-6. The fourth touches on the critical element of policy coherence. UNGP Principle 16 uses the policy commitment statement as a coordinating instrument of coherence. That naturalizes the function within the traditional contemporary environments of private sector enterprise governance. In the process it aligns the use and focus of the statement with the Pillar 1 coherence expectation set out in UNGP Principles 8-10.
Lastly, the Statement serves as a nexus point for the technocratic project that human rights due diligence is meant to become. The central element of this is consultation—not mass consultation, though that is permitted. Rather expert consultation becomes the centering element of system construction and operation.[49] Both enterprise and the masses are objects that just be studied and from that point worked on; their development of values based behaviors is assumed best guided by knowledge centers, specialized knowledge centers that can help move along a project of principled pragmatism by inserting experts in the system as the font of “principle”.[50] Critical for the UNGP was consultation with the three stakeholder communities—business, civil society and States.[51] Consultation based guidance also was built into the post-UNGP endorsement Working Group.[52] This is not unique to business and human rights but has emerged as the organizing element of contemporary institutional governance.[53]
8.5.3 Other Glosses
Again, as in interpreting other UNGP Principles, one must distinguish between glosses on the UNGP, and efforts to argue for one or another best reading among the range of plausible approaches to an interpretation and application of the UNGP. Arguments toward a “best” or “sound” interpretation does not go to the meaning or understanding of the UNGP itself but rather to debates about its application in specific times, places, and spaces. It is with that in mind that it is worth exploring what others have contributed to the meaning of Text and Commentary.
Maddalena Neglia has provided a gloss on UNGP Principle 16.[54] Neglia starts from the premise that UNGP Principle 16’s purpose is fundamentally facilitative in two respects. The first is to facilitate institutional corporate capacity to undertake human rights due diligence, and by that undertaking to fulfill its expectations to respect human rights.[55] The second is to facilitate the coordination between Pillar 1 and Pillar 2.[56] Neglia undertakes this examination by considering UNGP Principle 16 in the context of (1) human rights policy, (2) approval, expertise and embedded throughout business, (3) public availability and communications, (4) lessons learned from practice in the decade after endorsement, and (5) mandatory legislation.
Naglia references the political decisions and policy projects of the United Nations Office of the High Commissioner for guidance on fleshing out a proper enterprise human rights policy.[57] These reference suggest the OHCHR sense of best practices in making choices among alternatives in the construction of a policy commitment statement, grounded in their own sense of the principles embedded within UNGP Principle 16. Of particular interpretive interest may be the OHCHR interpretation that UNGP Principle 16 is meant to serve multiple objectives—internal embedding, external signaling and outreach, and capacity building.
Naglia also draws on the OECD 2018 Due Diligence Guidance for Responsible Business Conduct.[58] These also suggest a set of best practice interpretation of UNGP Principle 16 that permit the construction of a policy commitment statement that aligns with their own normative principles. These can add to the information that may be added to the policy commitment statement beyond the minimum set out in the UNGP 16 Text.[59] Among the most interesting is the suggestion that the policy commitment statement can also include a statement of positive obligation to further realize human rights beyond the expectation that enterprise systems would be aimed at preventing, mitigating and remedying adverse human rights impacts.[60] Naglia also draws on these sources to amplify other interpretive insights—the role of senior management in oversight, the need to ensure that the policy statement is produced in local languages, and that they be incorporated into codes of conduct and other private law arrangements within supply chains.
Naglia draws on lessons from the first decade after endorsement of the UNGP.[61]For tis Naglia draws on work of the World Benchmarking Alliance.[62] Among the determinations was the perhaps not unexpected disconnect between the aspirational language of the policy commitment statement and the reality of application, though here, of course, the extent of the disc9nnect depends in part on the measure used to make that assessment. In addition UNGP Principle 16 did not appear to play a prominent role in the construction of State National Action Plans. Naglia ends with a suggestion that the disconnect may warrant substantially more serious consideration of the legalization of the process of implementing UNGP Principle 16.[63]
13.6 Conclusion
UNGP Principle 16 serves as the enterprise’s regulatory and policy vessel within which it may take the foundational and more abstract principles of the corporate responsibility to respect human rights and shape them into the framework for the structures of operation that will make its application as human rights due diligence possible. Within the constraints of UNGP Principles 11-15 UNGP Principle 16 describes a quite capacious vessel. It is one that starts the process of transposing the unified concept of Pillar 2 into the contextually differentiated structures of human rights due diligence, again within their parameters in UNGP Principles 17-24.
But it worth remembering that the UNGP does not inscribe one best way of approaching the application of its principles. Indeed the opposite appears to be true within the markets driven reality space of Pillar 2—that in contrast to the more ordered world of public law within a State system grounded in law and policy—an ordered liberty through rule of law systems. In Pillar 2 there are transactions, processes, and consequences the ordering and valuing of which, the allocation of the consequences of which, becomes the stuff of the foundational Principles UNGP Principles 11-15, the operational principles of human rights due diligence UNGP Principles 17-24, and the regulatory instrument through which the two are mediated, contextualized and realized.
It is this capacious space made available in and as UNGP Principle 16 that many have sought to order, rationalize, or use strategically as a place through which their own values/approaches to Pillar 2 and human rights due diligence might be accorded pride of place. That is only natural; and the UNGPs are textually, at least, indifferent to the effort. Indeed, that is the point of the contextual foundation of Pillar 2, rooted as it is in private arrangements among autonomous actors whose autonomy is also in many respects also a human right the adverse impact of which ought to matter to those who would produce them.
Nonetheless, these are efforts at engagements with the UNGP, its application as a function of deeply held ideological principles and the premises about economic activity, the role of markets, the use of law and the ultimate rationalization of regulatory space targeting economic activity as a function of human rights. They are not commentary.[64] The difference is critical respecting an understanding of the UNGP, rather than its instrumentalization for some greater cause. Commentary is a predicate for the political/normative task of application, one that involves making and advocating the “best” choices for the desired objectives--grounded in values, politics, and objectives—within the framework the UNGP provides and the sometimes large space it opens for action. Recall as well that, at the end of the day, both the UNGP and SRSG Ruggie made one thing clear—everything in the UNGP, from its strictures to its flexibility are all meant to be directed toward the goal of addressing adverse human rights impacts related to economic activity. To that end a vessel is needed that is contextually relevant—one suited to the market based on the foundational premise that the market represents a space within which autonomous actors have substantial discretion to order their own lives and actions as they wish, subject only to the constraints of states that are themselves constrained by the human rights that States have a duty to protect. What this produces in UNGP Principle 16 is a framework linked to objectives and constraints. It does not provide a “best” answer for the expectations it describes and orders. It embraces context and variability. While a State may, thorugh UNGP 3 assert an authority in law and policy to create mandatory choices for the choices built into UNGP 16, it can only make good on those mandatory strategies only to the extent of the reach of its jurisdiction.[65]
[1] Discussed Chapter 12.
[2] Discussed Chapters 6-9.
[3] Concept discussed at Chapter 3.2; see also Enrico Partiti, ‘Polycentricity and Polyphony in International Law: Interpreting the Corporate Responsibility to Respect Human Rights,’ (2021) 70(1) International and Comparative Law Quarterly 133-164; Larry Catá Backer, ‘The Structural Characteristics of Global Law for the 21st Century: Fracture, Fluidity, Permeability, and Polycentricity,’ (2012) 17(2) Tilburg Law Review 177-199.
[4] See Gunther Teubner, ‘Societal Constitutionalism: Nine Variations on a Theme by David Sciulli,’ in Paul Blokker and Chris Thornhill (eds), Sociological Constitutionalism (CUP. 2017) 313-340.
[5] See Nico Krisch, ‘Entangled Legalities in Postnational Space,’ (2022) 20(1) International Journal of Constitutional Law 476-506.
[6] The focus here is on imitation or representation sourced in distinct, multiple network of autonomous but decentralized entities. Cf., Larry Catá Backer, ‘ The Soulful Machine, the Virtual Person, and the “Human” Condition: An Encounter with Jan M. Broekman, Knowledge in Change: The Semiotics of Cognition and Conversion (Cham, Switzerland: Springer Nature, 2023),’ (2024) 37 International Journal for the Semiotics of Law 969-1083.
[7] Larry Catá Backer, ‘Transnational Corporations' Outward Expression of Inward Self-Constitution: The Enforcement of Human Rights by Apple, Inc.,’ (2013) 20(2) Indiana Journal of Global Legal Studies 805-879.
[8] Compare the Commentary of Chapters 6-7, with Chapter 12.
[9] Discussed Chapter 8.
[10] UNGP Principle 3 Commentary.
[11] UNGP Principle 15; discussed Chapter 12.
[12] Etymology online “embed”, available https://www.etymonline.com/word/embed, last accessed 1 August 2025.
[13] Cambridge Spanish-English dictionary, available https://dictionary.cambridge.org/us/dictionary/spanish-english/clustering, last accessed 3 August 2025.
[14] Cambridge French-English dictionary, available https://www.google.com/url?sa=t&source=web&rct=j&opi=89978449&url=https://dictionary.cambridge.org/us/dictionary/french-english/ancrer, last accessed 3 August 2025.
[15] UNGP Principle 16(a).
[16] Ibid,, Principle 16(b).
[18] See Generally Larry Catá Backer, ‘The Private Law of Public Law: Public Authorities as Shareholders, Golden Shares, Sovereign Wealth Funds, and the Public Law Element in Private Choice of Law,’ (2008) 82(5) Tulane Law Review 1801.
[19] Discussed Chapter 8.
[20] Discussed Chapter 1.
[21] Discussed Chapter 14.
[22] For the application of that interpretive stance consider UN Environment Programme. Communicating and disclosing: own business operations and consumer lending, Human Rights Toolkit/Human Rights Due Diligence, available https://www.unepfi.org/humanrightstoolkit/human-rights-due-diligence-hrdd/communicating-and-disclosing-own-business-operations-and-consumer-lending/., last accessed 1 August 2025.
[23] Discussed Chapter 14.
[24] Discussed Chapter 12.
[25] UNGP Principle 16 Commentary (“Just as States should work towards policy coherence, so business enterprises need to strive for coherence between their responsibility to respect human rights and policies and procedures that govern their wider business activities and relationships.”). On Pillar 1 policy coherence expectations, see discussion Chapter 11. For an interesting consideration from the perspective of biopolitics see Letícia Gracielle Vieira Ferreira and Cíntia Rodrigues de Oliveira, ‘State-corporate crimes and human rights violations: an essay on the symbiotic relationship between states and corporations,’ Cad. EBAPE.BR, v. 22, nº 1, Rio de Janeiro, e2023-0009, 2024, available https://doi.org/10.1590/1679-395120230009x.
[26] UNGP Principle 16 Commentary (“policies and procedures that set financial and other performance incentives for
personnel; procurement practices; and lobbying activities where human rights are at stake.”)
[27] UNGP Principle 16 Commentary (“the policy statement should be embedded from the top of the business enterprise through all its functions, which otherwise may act without awareness or regard for human rights.”).
[29] See, ‘How Innovative Was the Poupatempo Experience in Brazil? Institutional Bypass as a New Form of Institutional Change,’ (2011) 51(1) Brazilian Political Science Review, https://doi.org/10.1590/1981-3879201100010001; Greg Blackburn, ‘One-Stop Shopping for Government Services: Strengths and Weaknesses of the Service Tasmania Experience,’ (2016 39(5) International Journal of Public Administration 359–369. This trajectory has been enhanced by technology in the form of smart cities as one stop shopping platforms. See, e.g., ‘7 Smart Cities Examples We Can Learn From,’ City as a Platform (27 July 2022), available https://www.city-platform.com/post/7-smart-cities-examples-we-can-learn-from, last accessed 2 August 2025.
[30] Discussed Chapter 3.1.
[31] Cf., Thomas Power, Organized Uncertainty, Designing a World of Risk Management (Oxford U. Press, 2007), p. 42.
[32] Special Representative of the Secretary-General on human rights and transnational corporations and other business enterprises, Business and human rights: further steps toward the operationalization of the “protect, respect and remedy” framework A/HRC/14/27 (9 April 2010); available [
[https://undocs.org/en/A/HRC/14/27]; last accessed 25 February 2024, ¶39.
[33] Ibid., ¶¶ 33-43.
[34] Consultation was a critical element of the working style of the SRSG, one driven by the Human Rights Council’s mandate. Discussed Chapters 2.2 and 3.3.
[35] Developed in Special Representative of the Secretary-General on human rights and transnational corporations and other business enterprises, Report to the UN General Assembly Human rights and transnational corporations and other business enterprises A/65/310 (19 August 20210); available [https://undocs.org/en/A/65/310]; last accessed 25 February 2024.
[36] Special Representative of the Secretary General on the Issue of Human Rights and Transnational Corporations and Other Business Enterprises, John G. Ruggie, Draft Guiding Principles for the Implementation of United Nations “Protect, Respect, and Remedy” Framework, A/HRC/--- (N.D. circulated from November 2010) available [https://media.business-humanrights.org/media/documents/files/reports-and-materials/Ruggie-UN-draft-Guiding-Principles-22-Nov-2010.pdf‘; or “https://menschenrechte-durchsetzen.dgvn.de/fileadmin/user_upload/menschenr_durchsetzen/bilder/Menschenrechtsdokumente/Ruggie-UN-draft-Guiding-Principles-22-Nov-2010.pdf], last accessed 25 February 2024. Discussed Chapter 2.3.4.
[37] Merriam-Webster Dictionary, available https://www.merriam-webster.com/dictionary/foundation#legalDictionary, last accessed 3 August 2025.
[38] Ibid., available https://www.merriam-webster.com/dictionary/basis, last accessed 3 August 2025.
[39] See 2010 Draft UNGP Principle 14 Commentary (“Through these and any other appropriate means, the commitment should be embedded from the top of the business enterprise, down through all its functions, which otherwise may act without awareness or regard for human rights.”).
[40] Discussed Chapter 13.
[41] UNHRC Resolution 8/7 2008--Human Rights Council, Mandate of the Special Representative of the Secretary-General on the issue of human rights and transnational corporations and other business enterprises, A/HRC/Res/8/7 (18 June 2008) [https://ap.ohchr.org/documents/E/HRC/resolutions/A_HRC_RES_8_7.pdf] (hereafter the UNHRC 2008 Resolution). Discussed at Chapter 3.3.2.
[42] Discussed Chapters 13.3 and 13.4.
[43] Cf., Kieran Taylor-Neu, Abu S. Rahaman, Gregory D. Saxton, and Dean Neu, ‘Tone at the top, corporate irresponsibility and the Enron emails,’ (2024) 37(9) Accounting, Auditing & Accountability Journal 336-364.
[44] See, ‘How Innovative Was the Poupatempo Experience in Brazil? Institutional Bypass as a New Form of Institutional Change,’ (2011) 51(1) Brazilian Political Science Review, https://doi.org/10.1590/1981-3879201100010001; Greg Blackburn, ‘One-Stop Shopping for Government Services: Strengths and Weaknesses of the Service Tasmania Experience,’ (2016 39(5) International Journal of Public Administration 359–369. This trajectory has been enhanced by technology in the form of smart cities as one stop shopping platforms. See, e.g., ‘7 Smart Cities Examples We Can Learn From,’ City as a Platform (27 July 2022), available https://www.city-platform.com/post/7-smart-cities-examples-we-can-learn-from, last accessed 2 August 2025.
[45] Discussed Chapter 3.1.
[46] Cf., Thomas Power, Organized Uncertainty, Designing a World of Risk Management (Oxford U. Press, 2007), p. 42.
[47] Special Representative of the Secretary-General on human rights and transnational corporations and other business enterprises, Business and human rights: further steps toward the operationalization of the “protect, respect and remedy” framework A/HRC/14/27 (9 April 2010); available [
[https://undocs.org/en/A/HRC/14/27]; last accessed 25 February 2024, ¶39.
[48] Ibid., ¶¶ 33-43.
[49] Consultation was a critical element of the working style of the SRSG, one driven by the Human Rights Council’s mandate. Discussed Chapters 2.2 and 3.3.
[50] Developed in Special Representative of the Secretary-General on human rights and transnational corporations and other business enterprises, Report to the UN General Assembly Human rights and transnational corporations and other business enterprises A/65/310 (19 August 20210); available [https://undocs.org/en/A/65/310]; last accessed 25 February 2024.
[51] For example, John Ruggie once noted: “I made it a point to reach out to business literally from the beginning. . . Over the course of the six years, we held 47 international consultations; business was invited to participate, as were other stakeholders.” Business and Human Rights: Interview with John Ruggie, Business Ethics: The Magazine of Corporate Responsibility (30 October 2011), available https://business-ethics.com/2011/10/30/8127-un-principles-on-business-and-human-rights-interview-with-john-ruggie/, last accessed 30 July 2025.
[52] Discussed Chapter 2.2.
[53] Mark S. Schwartz, Thomas W. Dunfee, and Michael J. Kline, ‘Tone at the Top: An Ethics Code for Directors?,’ (2005) 58 Journal of Business Ethics 79-100.
[54] Maddalena Neglia, ‘Guiding Principle 13: Policy Commitments,’ in Barnali Choudhury (ed), The UN Guiding Principles on Business and Human Rights: A Commentary (Cheltenham, UK: Edward Elgar, 2023), pp 118-125.
[55] Ibid., pp. 118-119.
[56] Ibid., p. 119.
[57] Ibid., p. 119. Citing United Nations Global Compact, A Guide for How to Develop a Human Rights Policy (2nd ed, Geneva: U.N., 2015).
[58] OECD, Due Diligence Guidance for Responsible Business Conduct (Paris, 2018).
[59] Naglia, p. 119 text at note 7; generally ibid., pp. 119-120.
[60] Ibid.
[61] Ibid., p 121.
[62] World Benchmarking Alliance, ‘Corporate Human Rights Benchmark Key Findings report’ (2020), available https://assets.worldbenchmarkalliance.org/app/uploads/2020/11/WBA-2020-CHRB-Key-Findings-Report.pdf, last accessed 2 August 2025.
[63] Naglia, p. 122-124,
[64] Discussed Chapter 1.
[65] Discussed Chapter 8.
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