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The following is the extended text of remarks delivered at Universidad ICESI, Cali, Colombia, 19 March 2026. I am grateful to the organizers of the event and especially to the students in the Semillero (Incubator) whose work is truly amazing, and with whom I hope to work more closely in the future.
The abstract follows (English and Spanish) and the full text may be accessed below.Abstract (English): These extended remarks examine the critical intersection between corporate governance and the United Nations Guiding Principles on Business and Human Rights (UNGP), derived from a 2026 lecture by Larry Catá Backer. Moving beyond traditional, checklist-oriented compliance frameworks, the work problematizes the field by interrogating the fundamental nature, authority, and socio-economic purpose of the modern enterprise. It analyzes the ongoing friction among three competing doctrinal paradigms: concession theory, property theory, and real-entity theory. The text explores how economic globalization has eroded territorial state power, creating a polycentric governance landscape where public law and private contractual ordering interpenetrate. Tracing the historical shift from the failed, state-centric 2003 UN Draft Norms to John Ruggie’s "principled pragmatism" in the 2011 UNGP, the essay details how the framework aligns distinct institutional registers. It systematically unpacks the asymmetric architecture of the three pillars: the binding State duty to protect, the expectation-based corporate responsibility to respect, and access to remedy. Special emphasis is placed on human rights due diligence as an operational hinge performing multi-layered institutional functions. Ultimately, the remarks suggest that the interpenetration of these pillars destabilizes classical corporate law doctrines—such as fiduciary duties and choice of law. It demonstrates that corporate governance and transnational human rights regulation can no longer be evaluated in isolation, as they structurally couple to reshape the legitimacy of the global economic order.
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Resumen (Español): Este ampliado discurso examina la intersección crítica entre la gobernanza empresarial y los Principios Rectores de las Naciones Unidas sobre las Empresas y los Derechos Humanos (PRNU), derivado de una conferencia dictada por Larry Catá Backer en 2026. Superando los marcos tradicionales de cumplimiento técnico, la obra problematiza este campo al interrogar la naturaleza fundamental, la autoridad y el propósito socioeconómico de la empresa moderna. Se analiza la fricción constante entre tres paradigmas doctrinales en disputa: la teoría de la concesión, la teoría de la propiedad y la teoría de la entidad real. Asimismo, el texto explora cómo la globalización económica ha erosionado el poder estatal territorial, creando un panorama de gobernanza policéntrico donde el derecho público y el ordenamiento contractual privado se interpenetran. Al trazar la evolución histórica desde las fallidas Normas de la ONU de 2003 hasta el "pragmatismo de principios" de John Ruggie en los PRNU de 2011, el ensayo detalla cómo este marco alinea distintos registros institucionales. Descompone sistemáticamente la arquitectura asimétrica de los tres pilares: el deber vinculante del Estado de proteger, la responsabilidad de exhortación de las empresas de respetar y el acceso al remedio. Se otorga especial énfasis a la debida diligencia en derechos humanos como un eje operativo que despliega múltiples funciones institucionales. Finalmente, la obra concluye que la interpenetración de estos pilares desestabiliza las doctrinas clásicas del derecho corporativo —como los deberes fiduciarios y la elección de la ley aplicable—. De este modo, demuestra que la gobernanza empresarial y la regulación transnacional de los derechos humanos ya no pueden evaluarse de forma aislada, ya que se acoplan estructuralmente para rediseñar la legitimidad del orden económico global.
Perhaps one can get to the heart of the discussion this way: A conventional treatment of business and human rights law would proceed taxonomically: identify the instrument (the Guiding Principles), state its content (three pillars), and catalogue its implementation (national action plans, due diligence legislation, disclosure regimes). Such a treatment would be accurate but incomplete, because it would take for granted precisely what the problematizing method insists on interrogating—namely, whether “corporate governance” and “human rights” name two separate and stable regulatory domains that can simply be brought into contact, or whether both are themselves unstable constructs whose meeting produces something genuinely new.
The inquiry unfolds along six interlocking axes: the fundamental character of enterprises and of economic objectives; the effect of globalization and trade regimes on the borders of state authority; the resulting “palettes” of public and private normative ordering; the general problem of the corporation and of corporate governance as such; the specific manifestation of that problem in the domain of corporate human rights, including its historical antecedents and its crystallization in the United Nations Guiding Principles on Business and Human Rights (UNGP); and, finally, the connections, alignments, and transformations that link corporate governance doctrine to the human rights framework.What follows takes up each of these in turn, before considering what the encounter between the two fields—corporate governance and business and human rights—suggests about the present condition of transnational economic regulation.
The full text may be downloaded HERE.
Note on the Spanish translation: To accurately integrate the academic context and refine the nuances between the English common-law corporate tradition and the Spanish legal framework, the translation has been revised to strengthen key transliterations and functional equivalents. Key Transliteration & Terminology Enhancements: (1) Corporate Governance: Maintained as Gobernanza Empresarial in headings, but translated as Gobierno Corporativo within the text when discussing strict corporate law doctrine, matching standard Spanish academic usage. (2) Creature of the State / Real-entity theory: Rendered as criatura del Estado and teoría de la entidad real, which are the recognized academic equivalents in comparative corporate law. (3) Remedy: Transliterated contextually. While "remedio" is used in the official Spanish translation of the UNGPs, the academic text demands reparación or vías de recurso depending on whether it refers to the outcome or the mechanism. Both are utilized to capture the full semantic weight. (4) Due Diligence: Maintained as debida diligencia, the stabilized term in international law.
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Encountering Corporate Governance and the UN Guiding Principles for Business and Human Rights
El Encuentro entre la Gobernanza Empresarial y los Principios Rectores de la ONU sobre las Empresas y los Derechos Humanos
An essay derived from Larry Catá Backer's lecture, “El Encuentro entre la Gobernanza Empresarial y los Principios Rectores de la ONU sobre las Empresas y los Derechos Humanos,” delivered at the Universidad ICESI, Cali, Colombia, 19 March 2026.
I. From Problem to Problematization
The relationship between corporate governance and human rights is ordinarily presented as a matter of technique: a question of which compliance mechanism, disclosure regime, or due-diligence protocol best channels enterprise conduct toward socially acceptable ends. The lecture on which this essay is based resists that framing from its opening move. Rather than beginning with an inventory of instruments, it begins with a problematization—an inquiry into who, or what, actually drives corporate governance, and on what authority.[1]
That inversion is characteristic of an analytic approach that treats governance not as a fixed architecture to be described but as a contested field constituted by unresolved premises about the nature of the enterprise, the objectives of economic activity, and the diminished capacity of the territorial state to contain either. It is worth pausing on the significance of beginning this way. A conventional treatment of business and human rights law would proceed taxonomically: identify the instrument (the Guiding Principles), state its content (three pillars), and catalogue its implementation (national action plans, due diligence legislation, disclosure regimes). Such a treatment would be accurate but incomplete, because it would take for granted precisely what the problematizing method insists on interrogating—namely, whether “corporate governance” and “human rights” name two separate and stable regulatory domains that can simply be brought into contact, or whether both are themselves unstable constructs whose meeting produces something genuinely new.
The inquiry unfolds along six interlocking axes: the fundamental character of enterprises and of economic objectives; the effect of globalization and trade regimes on the borders of state authority; the resulting “palettes” of public and private normative ordering; the general problem of the corporation and of corporate governance as such; the specific manifestation of that problem in the domain of corporate human rights, including its historical antecedents and its crystallization in the United Nations Guiding Principles on Business and Human Rights (UNGP); and, finally, the connections, alignments, and transformations that link corporate governance doctrine to the human rights framework.[2] What follows takes up each of these in turn, before considering what the encounter between the two fields—corporate governance and business and human rights—suggests about the present condition of transnational economic regulation.
II. The Fundamental Problématique of the Enterprise
Three rival conceptions of the legal personality of the enterprise recur throughout the analysis, and each carries distinct governance implications. The enterprise may be understood, first, as principally a creature of the state, brought into being by an act of public law and therefore properly subject to plenary state control; second, as a species of property held by those with an equity interest in it, and thus properly governed according to the logic of ownership and shareholder primacy; or third, as an autonomous economic organ, separate from both the state that charters it and the investors who capitalize it, possessed of its own institutional logic and, arguably, its own social obligations.[3]
These are not merely academic distinctions. Each supplies a different account of what a corporation is for, and each therefore generates a different answer to the question of whose interests corporate governance is meant to serve: the state’s regulatory objectives, the investors’ claims to value, or some autonomous institutional interest of the enterprise itself, understood as a specialized organ of society. The concession theory, the property theory, and the real-entity or organ theory of the corporation are, in this sense, not archaic doctrinal curiosities but live and competing premises, each still doing work in different corners of contemporary law and in different national traditions—work that becomes visible precisely when a regime such as the Guiding Principles asks enterprises to bear obligations that sit uneasily with any single one of the three accounts.
That question of purpose is inseparable from a second: the object of value-maximization. Enterprise activity might be understood as oriented toward maximizing value for investors, for the enterprise considered as an ongoing institution, or for the realization of state policy and of broader economic and social objectives.[4] The coexistence of these three objectives within a single legal form—the business corporation—is a source of chronic normative friction, and it is this friction, rather than any settled consensus, that supplies the terrain on which contemporary governance debates, including those concerning business and human rights, are conducted. A shareholder-primacy account will tend to treat human rights obligations as, at best, a risk-management overlay on the pursuit of value for investors; a stakeholder or social-organ account will tend to treat them as intrinsic to what the enterprise is for; and a state-instrumentalist account will tend to treat them as simply one more policy objective that the state may, or may not, choose to delegate to the enterprise for implementation. The Guiding Principles, as will become apparent, decline to resolve this dispute and instead build around it.
A third complication follows from globalization itself. The World Trade Organization and allied trade regimes have narrowed the scope of national regulatory authority over economic activity that nonetheless occurs, in whole or in part, within national territory.[5] The free movement of goods, services, capital, and investment has produced dense transnational supply chains, only fragments of which fall within any single state’s jurisdiction. The consequence is that neither economic policy nor corporate governance norms remain within the exclusive control of any one state.[6] Governance, in other words, has become polycentric before it has become coherent: authority is dispersed across multiple normative orders—national, international, and private—without any settled hierarchy among them, and without any single institution positioned to declare which order governs a given transaction, a given harm, or a given enterprise.
III. Palettes of Governance: Public Law and Private Law
Two broad “palettes”—the lecture’s own term for repertoires of normative technique—organize the contemporary governance of enterprises. The first is public law, comprising direct legislative mandates and traditional compliance mechanisms, together with administrative organs charged with translating legislative objectives into regulatory practice through the delegation of legislative aims to enterprises, rating and social-scoring systems, and mandates for disclosure and policy formulation.[7]
The second is private law, comprising the internal policies, objectives, and regulatory ecologies that supply-chain lead firms impose on the firms beneath them, grounded doctrinally in contract among the enterprises that constitute a production chain.[8] Private ordering of this kind is never purely autonomous; it represents a blend of residual public-law obligation, the disciplinary requirements of the market with respect to value enhancement, and the general normative expectations that prevail among participants in a given industry.[9] It is worth underscoring how much regulatory weight this second palette now carries. Codes of conduct, supplier codes, industry certification schemes, and multi-stakeholder standard-setting bodies together constitute a body of norm-production that rivals—and in some production chains exceeds—the reach of any single state’s labor, environmental, or human rights legislation. The Guiding Principles' own commentary acknowledges this terrain by pointing to instruments such as the OECD Guidelines for Multinational Enterprises as illustrative of the multilateral soft-law layer situated between binding treaty law and purely private contractual ordering.[10]
Backer’s own draft Commentary on the Guiding Principles develops this palette distinction into a fuller account of two competing sources of corporate legitimacy. A corporation is legitimated, first, as a creature of law, by complying with the requisites the state attaches to its organization and operation—legal personality, limited liability, and access to formal dispute resolution among them; it is legitimated, second, as an economic entity, by the ongoing consent of its principal stakeholders—investors, customers, employees, trade creditors—whose continued participation supplies what the Commentary terms the enterprise’s social license to operate.[11] On this account, the corporate responsibility to respect human rights is not a free-floating ethical aspiration but an extension of that second, social form of legitimation: compliance with state law is comparatively easy to compel, since states possess the police power to enforce it, while compliance with social-license norms depends on monitoring and disclosure that stakeholders themselves have limited power to compel, which is precisely the gap that human rights due diligence is designed to fill.
The normative and policy challenge that emerges from this bifurcated field is considerable. It requires managing the adverse human rights effects of economic activity within regulatory systems of extraordinary global complexity, while preserving the core commitments of the classical state system—the state’s regulatory authority within its own jurisdiction and its role as the principal agent for the elaboration and domestication of international law.[12]
It requires doing so, moreover, while recognizing simultaneously the practical limits of state power over global production and of international law’s capacity to bind non-state actors directly; the regulatory function that non-state economic actors perform through private law and private norm-making; the role that non-governmental organizations play as a kind of substitute demos within the global economic sphere; and the incapacity, in some jurisdictions, of the state itself to enforce its own laws, including its international legal obligations.[13]
Enterprises thus occupy a contested space, alternately understood as instruments of public policy, as bearers of economic value-generating functions in tension or alignment with human rights and sustainability objectives, and as institutions of uncertain fiduciary obligation, owing duties whose content and beneficiaries remain unsettled.[14] Regulatory power, in short, is fractured, but so too is the normative consensus about the nature, role, and operation of the entities that regulatory power is meant to govern. This double fracture—of authority and of consensus—is the condition within which the state duty to protect (public law) and the corporate responsibility to respect (increasingly a matter of internal and contractual private ordering) must both be situated, a point developed at length below.
IV. Historical Antecedents: From the Code of Conduct to the Guiding Principles
The business and human rights framework did not emerge from a normative vacuum; it is the product of a decades-long, and largely unsuccessful, effort to discipline transnational enterprise through binding international law. In the 1960s and 1970s, transnational enterprises were widely regarded—in the aftermath of events such as the overthrow of the Allende government in Chile—as threats to the sovereign order, prompting the drafting of a United Nations Code of Conduct for Transnational Corporations amid the broader push, emerging from the Bandung Conference and the rise of the Global South, for a New International Economic Order.[15]
Between the 1980s and 2000, this project gave way to the UN Geneva initiative that produced the Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights, which purported to impose legally binding obligations directly on business enterprises to respect, protect, and fulfill human rights.[16] A parallel and considerably softer initiative, the Global Compact, was managed contemporaneously by John Ruggie.[17] The contrast between the two projects is instructive in its own right: the Norms sought to bind enterprises directly, as subjects of international law in their own right, while the Global Compact asked enterprises only to commit voluntarily to a set of principles, with no attendant mechanism of enforcement or sanction. The subsequent history of business and human rights governance can be read, in substantial part, as an oscillation between these two poles.
Backer’s Commentary situates the failure of the Norms not merely as a matter of insufficient state support but as a matter of design. The Norms, on this reading, replicated rather than corrected the very imbalance they meant to address: instead of leaving the private sector detached from the normative constraints of the state system, they sought to convert enterprises into a kind of privatized public administrative organ operating under direct state-style supervision—effectively imposing on companies, without their consent, obligations styled on those borne by states themselves.[18] Ruggie’s principled-pragmatic alternative can accordingly be read as a deliberate correction of that design error: rather than dissolving the distinction between public, state-based regulation and private, market-based ordering, the Guiding Principles preserve the distinction and instead seek to align the two registers, each operating according to its own institutional logic, toward a shared substantive objective.
The Norms were rejected by the UN Commission on Human Rights in 2004.[19] In their place, Secretary-General Kofi Annan appointed Ruggie as Special Representative of the Secretary-General, charging him with developing a framework grounded in soft law rather than binding obligation.[20]
Ruggie’s 2008 report to the Human Rights Council, “Protect, Respect and Remedy,” articulated the three-pillar structure—the state duty to protect, the corporate responsibility to respect, and access to remedy—that would furnish the architecture of the eventual Guiding Principles.[21] Those Guiding Principles were endorsed by the UN Human Rights Council in resolution 17/4 of 16 June 2011.[22]
Since 2014, a renewed effort has sought once again to develop a binding international treaty on business and human rights, suggesting that the soft-law settlement of 2011, whatever its practical achievements, did not resolve the underlying dispute over whether transnational enterprise conduct should ultimately be disciplined by hard or soft law.[23] That working group’s continuing negotiations over a draft treaty, more than a decade after Resolution 26/9, indicate that the choice between the binding and the voluntary—the choice the 2003 Norms and the 2011 Guiding Principles resolved in opposite directions—remains an open, and periodically re-litigated, question of institutional design rather than a settled feature of the field.
V. Principled Pragmatism as Founding Ideology
The ideological core of the Guiding Principles is captured in Ruggie’s own formulation of “principled pragmatism”: an unflinching commitment to strengthening the promotion and protection of human rights as they relate to business, joined to a pragmatic attachment to whatever measures work best in producing change where it matters most, in the daily lives of people.[24]
This formulation deserves to be read as a genuine methodological commitment rather than as a rhetorical hedge. It signals a deliberate rejection of the binding-treaty approach embodied in the 2003 Norms, in favor of an incrementalist strategy that accepts the persistence of a fragmented, multi-sited regulatory field—public and private, national and transnational—and seeks to align its constituent parts rather than to supersede them with a single hierarchical instrument. Ruggie himself, in explaining his approach, distinguished it explicitly from the Norms, which he regarded as a distraction from the more incremental work of building institutional capacity and stakeholder consensus around a workable standard.
The general structure of the Guiding Principles follows directly from this commitment. General principles articulate the basic premises on which the instrument rests and its basic approach to application; general frameworks then elaborate the state’s duty to protect human rights, the corporate responsibility to respect human rights, and the availability of remedies for their breach.[25]
The instrument’s stated focus is on the human rights effects of economic activity, constructed within and around the constraints of the existing regulatory field rather than in defiance of them; its fundamental objective is to deploy aligned but formally autonomous systems of public law and market discipline to prevent, mitigate, and, failing either, remedy adverse human rights impacts for which enterprises may be held responsible.[26]
Several innovations distinguish this framework from its predecessors. It confines the state duty to protect to each state’s own legally binding internal and international obligations, rather than asserting a freestanding international duty.[27] It recognizes the market itself as an autonomous regulatory space, and the enterprise as a vehicle of transnational regulation within the scope of its own production chains—an explicit acknowledgment of private ordering as a governance modality in its own right, not merely as a gap-filler for weak public regulation.[28]
It draws a sharp analytical distinction between the state’s duty to protect and the corporation’s responsibility to respect, refusing to collapse the two into a single undifferentiated obligation.[29] It centers the concept of remedy on the specific nexus between a remedial mechanism and the adverse human rights impact it addresses, rather than on remedy as a generic residual category.[30] It shifts the operative posture of enterprises from reactive legal compliance toward proactive prevention and mitigation, with remedy reserved for impacts that could not be prevented.[31] And it develops, as its principal operational innovation, the framework of human rights due diligence.[32] Taken together, these six innovations describe a framework that is deliberately modest in its jurisprudential ambition—it creates, by its own terms, no new international law—and correspondingly ambitious in its operational reach, since it addresses itself to every business enterprise and every state without exception of size, sector, or structure.
Backer’s Commentary offers a structural account of why this particular design was chosen. Within the totality of governance power, the three pillars divide that power along the lines of the institutional actor best suited to wield it—state, corporation, and adjudicator, respectively—while imposing limits on each through mechanisms of enforced communication among them, an arrangement the Commentary likens to the American constitutional logic of checks and balances and separation of powers, here adapted to govern a functionally differentiated community of economic actors rather than a single sovereign polity.[33] The Commentary terms the resulting arrangement a “polycentric” one: distinct governance systems, overlapping in membership, territory, and jurisdiction but each retaining its own institutional logic, are nudged toward coordinated “smart mixes” of national and international, mandatory and voluntary measures, rather than being subordinated to a single hierarchical authority.[34]
VI. The Architecture of Obligation: State Duty, Corporate Responsibility, and Remedy
The Guiding Principles rest on three foundational premises: the state’s existing obligations to respect, protect, and fulfill human rights and fundamental freedoms; the understanding of business enterprises as specialized organs of society, performing specialized functions, required both to comply with all applicable law and to respect human rights; and the necessity that rights and obligations be matched with adequate and effective remedies when breached.[35]
The instrument is careful to disclaim any expansive legal effect: nothing in the Guiding Principles is to be read as creating new obligations under international law, or as limiting or undermining any legal obligation a state may already have undertaken.[36] They apply to all states and to all business enterprises, transnational or otherwise, regardless of size, sector, location, ownership, or structure—but explicitly not to non-state armed actors or to religious institutions—and are to be read as a coherent whole, interpreted individually and collectively in light of the objective of achieving tangible results for affected individuals and communities and thereby contributing to a socially sustainable globalization.[37] This last phrase—“a socially sustainable globalization”—is not incidental. It signals that the Guiding Principles are addressed not merely to the discrete harms that individual enterprises cause, but to the legitimacy of the globalized economic order as such; the instrument’s ambitions, in other words, extend beyond remediation of particular abuses to the stabilization of the broader system of transnational production of which those abuses are symptomatic.
The state duty and the corporate responsibility, though structurally parallel, differ markedly in content. The state’s duty is a must: states must protect human rights, and should set out clearly the expectation that all business enterprises domiciled within their territory or jurisdiction respect human rights throughout their operations.[38] Protection, on the state side, requires appropriate steps to prevent, investigate, punish, and redress abuse through effective policies, legislation, regulation, and adjudication, but the human rights at issue are confined to those recognized in legally binding international instruments.[39]
The corporate responsibility, by contrast, is framed as a should: enterprises should avoid infringing the human rights of others and should address the adverse human rights impacts with which they are involved, and the human rights in view extend beyond binding law to encompass the full range of human rights norms, declarations, and policy expectations, with the International Bill of Human Rights and the ILO Declaration on Fundamental Principles and Rights at Work serving as the recognized floor.[40] The asymmetry is deliberate and consequential: the state is bound by what it has consented to as a matter of positive international law, while the enterprise is asked to respect a broader and less determinate universe of norms, on the theory that a private actor’s legitimacy does not depend, as a state’s does, on the formal consent mechanisms of international law-making.
Operationally, the state’s obligation runs through legal compliance, law reform in fields that impede the duty to protect, administrative practice, guidance, financial and consular support, and a “smart mix” of measures, potentially including mandatory human rights due diligence.[41] The corporate responsibility, by contrast, is calibrated to the extent to which an enterprise causes or contributes to an adverse impact, or is merely linked to one through a business relationship it did not cause; its content is a function of the enterprise’s size, sector, operational context, ownership, and structure, balanced against the severity of the impact at issue, and its minimum content includes an internal policy commitment and a human rights due diligence process.[42]
Realization of these obligations proceeds along three registers—mandatory, expectation-based, and remedial—each operating through both public and private law.[43] On the mandatory register, public law supplies direct legal compulsion while private law supplies internal rules and standardized contractual regimes within production chains. On the expectation-based register, public law relies on administrative oversight, guidance, disclosure, and financial incentive, while private law relies on internal rules, standardized regulatory contracts, and third-party standard-setting and assessment. Remedy operates through state-based judicial and non-judicial mechanisms and through non-state grievance mechanisms, though the assessment criteria applicable to states remain, notably, neither mandatory nor specified, in contrast to the assessment and communication obligations imposed on enterprises.[44] This last asymmetry deserves particular attention: it is enterprises, not states, on whom the instrument imposes an obligation to assess and communicate the adequacy of their own remedial mechanisms, even though the state remains the principal guarantor of judicial remedy as a matter of classical public law. The Guiding Principles thus quietly reallocate an evaluative burden away from the sovereign and onto the regulated.
Operationalizing the state duty further requires internal policy coherence—ensuring that the departments, agencies, and institutions that shape business practice are aware of, and observe, the state’s human rights obligations—and external policy coherence when states act within multilateral institutions dealing with business-related matters, seeking to ensure that such institutions neither hinder state duty or corporate responsibility nor fail to promote business respect for human rights.[45]
It requires, further, a rationalized approach to the “state-business nexus”: additional protective measures with respect to state-owned or state-controlled entities; adequate oversight when states contract for, or legislate to enable, privatized service delivery; the promotion of human rights respect through public procurement; and, in conflict-affected areas marked by gross human rights abuse, engagement calibrated to an enterprise’s own due diligence processes, denial of public support to enterprises implicated in gross abuse, and assurance that domestic law and enforcement are adequate to the heightened risk such areas present.[46]
Backer’s Commentary supplies further texture to the policy-coherence obligation of Principle 8, dividing it into vertical and horizontal dimensions. Vertical incoherence arises where a government commits to human rights obligations but fails to adopt the domestic policies, laws, and processes needed to implement them; horizontal incoherence, described as the more pervasive problem, arises where the departments and agencies that directly shape business practice—trade, investment, corporate, and securities regulators among them—conduct their work in isolation from, and largely uninformed by, their own government’s human rights obligations and agencies.[47] The Commentary to Principle 3 elaborates the operative technique for closing such gaps: the state should not assume that businesses invariably prefer, or benefit from, state inaction, and should instead consider a “smart mix” of measures—national and international, mandatory and voluntary—calibrated to foster business respect for human rights, while remaining attentive to the possibility that corporate and securities law principles, developed for other purposes, may themselves create doctrinal incompatibilities with the business and human rights project that a smart mix must work around rather than ignore.[48]
Human rights due diligence is the operational hinge of the entire corporate responsibility. Its objective is to enable enterprises to identify, prevent, mitigate, and account for how they address their adverse human rights impacts, through a four-part method: assessing actual and potential impacts, integrating findings into internal decision-making and acting on them, tracking the effectiveness of responses, and communicating externally how impacts are addressed.[49] Where actual adverse impacts nonetheless occur, remedy is required; due diligence is treated as a matter of legal compliance and is to be prioritized according to the severity of the impact and its context.[50]
My UNGP Commentary disaggregrates human rights due diligence into four distinct institutional functions that the Guiding Principles compress within that single term. HRDD performs a legislative function, in that it regularizes internal enterprise policy in a manner that substitutes for, or supplements, the decades-long drift of corporate governance toward regulation by contract; an executive function, in that it generates the information on which corporate decision-making is to be based; a monitoring function, available to internal and external stakeholders alike as a device for making accountability more efficient; and a fact-finding and remedial function, supplying the basis for resolving the human-rights-affecting consequences of enterprise conduct once they occur.[51] The Commentary cautions, however, that vesting so many distinct functions in a single process risks overwhelming it, and that the legislative, executive, monitoring, and remedial dimensions of due diligence will likely require separate doctrinal development as the practice of mandatory human rights due diligence matures beyond the Guiding Principles’ own text.
A related operational innovation, developed at length in my UNGP Commentaries on UNGP Principle 16, concerns the enterprise’s policy commitment statement—the internal instrument through which a corporation formally embeds its responsibility to respect within its own organizational structure. The Commentary reads the requirement that the statement be developed with a level of internal expertise proportionate to the complexity of the enterprise’s operations as evidence that the statement is meant to function less as a declaration of intention than as a technical, compliance-oriented instrument, one whose effectiveness depends on its capacity to penetrate the enterprise’s own hierarchical structure much as a norm, once introduced into a system, must propagate through it to take effect.[52]
Yet due diligence has firm limits. States cannot wholly displace market-based due diligence, because the state duty extends only to those international legal measures by which a given state is actually bound; international treaties are subject to the same limitation; and there is no single template for due diligence, since severity, context, and capacity substantially affect both the timing and the method by which adverse impacts are to be addressed.[53] These limits are not merely practical qualifications; they mark the outer boundary of the state-duty pillar as a matter of principle. A state may wish, as a matter of domestic policy, to compel every enterprise operating within its territory to undertake comprehensive human rights due diligence irrespective of the state’s own international obligations—and a growing number of states, through mandatory due diligence legislation, have moved in precisely that direction—but the Guiding Principles themselves do not require, and do not by their own terms authorize, such an extension of the state duty beyond its treaty-bound core.
Remedy itself is structured around two pillars operating in parallel. Under the first, states, as part of their duty to protect against business-related human rights abuse, must take appropriate steps—judicial, administrative, legislative, or otherwise—to ensure that those affected by abuse within their territory or jurisdiction have access to effective remedy, and should provide effective non-judicial grievance mechanisms alongside judicial ones as part of a comprehensive state-based remedial system.[54]
Under the second, enterprises that identify that they have caused or contributed to adverse impacts should provide for, or cooperate in, their remediation through legitimate processes, and should establish or participate in effective operational-level grievance mechanisms; industry and multi-stakeholder initiatives grounded in respect for human rights standards should likewise ensure that effective grievance mechanisms are available.[55]
Backer’s Commentary is notably more critical of the remedial pillar than of its two counterparts, describing it as the least autonomous and least robust link in an otherwise tightly integrated three-pillar system. Between the original construction of access to remedy in the 2008 “Protect, Respect and Remedy” framework and the final text of the Guiding Principles, the remedial pillar increasingly came to function as an expression of the state’s legitimating role rather than as an autonomous structure centered on the rights-holder; the mechanisms of the second and third pillars remain, on this reading, primarily oriented toward states, enterprises, and organized civil society as stakeholders, rather than toward the individuals and communities actually suffering adverse impacts.[56] A remedial architecture reoriented around the rights-holder, the Commentary suggests, would treat access to remedy as the vehicle for elaborating the obligations of all other actors—not only states, through legislation and judicial process, and enterprises, through internal policy and human rights due diligence, but potentially international organizations and other standard-setting collectives as well—rather than as a residual category triggered only after the first two pillars have already failed.
VII. Reception and the Unfinished Argument over Hard and Soft Law
The Guiding Principles have never commanded unanimous scholarly assent, and it is worth situating the framework described above within the broader debate over its adequacy. Critics have questioned whether a voluntary corporate “responsibility” to respect, unaccompanied by binding sanction, can do the work that a genuine human rights obligation requires, and whether the framework’s explicit disclaimer of new legal obligation leaves victims of corporate-related abuse without an adequate remedial guarantee.[57]
Other commentators have taken a more sympathetic view of Ruggie’s strategic choices, treating the shift from the 2003 Norms to principled pragmatism as a pragmatically necessary response to the political impossibility, in the mid-2000s, of securing state consent to a binding instrument directly regulating transnational corporations.[58] On this reading, the unanimous 2011 endorsement of the Guiding Principles by the Human Rights Council—including by states that had opposed the 2003 Norms—is itself evidence that the pragmatic route achieved a degree of normative traction that the more ambitious binding-treaty route had failed to secure.
The renewed treaty process initiated in 2014 can be read as a continuation of this same argument by other means, rather than as its resolution. Supporters of a binding instrument have continued to press the view that only directly enforceable obligations can adequately discipline the most severe forms of corporate-related human rights abuse, particularly in states lacking the institutional capacity to enforce their own laws; defenders of the Guiding Principles' architecture have continued to press the view that a binding treaty, even if achievable, would simply reproduce the state-consent bottleneck that made the Norms unworkable in the first place, without addressing the private-ordering and market-discipline mechanisms on which the Guiding Principles substantially rely.[59] Whichever position ultimately prevails, the persistence of this debate more than a decade after the Guiding Principles’ endorsement is itself significant: it suggests that principled pragmatism resolved a political impasse without resolving the underlying jurisprudential question of whether business and human rights governance is, in the end, a matter for international public law, for national law, or for the market.
VIII. Interpenetration: Corporate Governance and Human Rights Reconsidered
The final movement of the analysis returns to corporate governance as such, asking what the encounter with the Guiding Principles suggests about the character of the enterprise and the law that governs it. Enterprises now operate both within and beyond national legal systems; their legal personality remains contested among the state-creature, property, and autonomous-organ conceptions canvassed at the outset; and the law that bears upon them is itself tripartite—national, international, and private—while the governance systems built upon that law are grounded variously in state compliance regimes, international compliance regimes, and market compliance regimes.[60]
The three pillars of the Guiding Principles are best read not as sequential stages but as interlinked, interpenetrating institutional frameworks exhibiting structural coupling among functionally differentiated institutional actors, together constituting the aggregate of the relevant social relations, with human rights due diligence running through all three.[61]
The first pillar performs a function of macro-regulation, coordination, and guidance within state territories, supplemented by supra-coordination through international institutions and private actors, and operates through the creation of norms, capacity-building, and coordination running both upward and downward.[62] The second pillar performs a function of micro-regulation, coordination, and guidance within the territories of global production, supplemented by transnational alignment with non-governmental organizations, international organizations, and states, and operates through the creation of operational systems, effective implementation, and quality control and reporting.[63] The third pillar comprises state-coordinated systems of interlocking remedial mechanisms—judicial, administrative, and data-based accountability structures—operating through civil penalties directed at system integrity and through the vindication of rights both prospectively and after the fact.[64]
This interpenetration generates a series of unresolved conflicts with the doctrine of corporate governance proper. It is not settled to what extent human rights due diligence may be tied to, or may reshape, the fiduciary duties of care or good faith—particularly the duty to monitor—nor how legal risk and compliance are to be distinguished from ordinary business risk.[65] If a board’s duty to monitor is read to encompass the adequacy of an enterprise’s human rights due diligence system, the substantive content of that duty—ordinarily filled in by reference to national corporate law and, in the common-law tradition, by the deferential business judgment rule—would come to depend, at least in part, on a transnational soft-law instrument that expressly disclaims the creation of any new legal obligation. That is precisely the kind of doctrinal instability that the interpenetration of the pillars produces, and that corporate governance scholarship has not yet fully absorbed.
Questions of choice of law remain equally open: what law now governs matters of corporate governance, and has corporate governance ceased to be a matter exclusively of national law? What, finally, is the nature of the enterprise’s legal personality, what is the relationship between that personality and the enterprise’s purpose, and which institution—state, international organization, or market—principally drives the answer to either question?[66] These unresolved questions mark, in turn, the difference between an internationalist and a nationalist conception of corporate governance, a difference that the Guiding Principles, whatever their achievements, have not resolved but have instead rendered newly visible.[67]
Two further interpretive difficulties, developed in Backer’s Commentary, illustrate how the interpenetration of the pillars strains the polycentric architecture at points where institutional categories overlap rather than remain neatly separated. The first concerns what the Commentary terms the “double” and “double double” problem of state-owned enterprises operating abroad, particularly in conflict-affected territory: a state-owned enterprise is simultaneously a bearer of the second-pillar corporate responsibility to respect and an instrumentality potentially implicating its owner-state’s first-pillar duty to protect, a difficulty compounded further when the enterprise operates in a zone where the host state’s own governance capacity has itself broken down.[68] The Commentary suggests that the Guiding Principles’ formal preservation of the state/enterprise distinction in this context sits uneasily with the functionalist, effects-based logic that otherwise governs the corporate responsibility to respect, and that a more European-influenced approach—treating state ownership as transforming the character of an enterprise’s activity from private to public—would align more consistently with the Guiding Principles’ own underlying premises, at the cost of imposing correspondingly greater obligations on state-owned enterprises than on their privately held counterparts.
The second difficulty concerns corporate complicity, a concept the Guiding Principles never fully resolve into a single legal standard. Backer’s Commentary treats complicity as the doctrinal hinge connecting all three pillars simultaneously: it invokes the state’s duty to protect against third-party abuse, the enterprise’s autonomous responsibility to avoid contributing to abuse through its relationships, and the availability of remedy where a contribution has already occurred, while remaining legally unsettled enough that the Guiding Principles ultimately ground due diligence’s value less in resolving complicity doctrine than in giving enterprises a defensible process for avoiding it in the first place.[69]
IX. Conclusion
Read as a whole, the Guiding Principles emerge from this analysis not as a discrete regulatory instrument bolted onto an otherwise stable field of corporate governance, but as the most fully articulated expression to date of a broader condition: a governance space in which public law, private law, and market discipline operate as parallel, structurally coupled, and only partially aligned risk-regulation regimes.[70]
The persistent tension between the state-centered vision of corporate governance, inherited from classical public law, and the increasingly autonomous, transnational, market-and-contract-based governance of production chains is not incidental to the business and human rights project; it is its constitutive condition. Every doctrinal question surveyed above—the nature of enterprise personality, the object of value-maximization, the scope of fiduciary duty, the applicable choice of law—returns, in one form or another, to this same unresolved tension between the enterprise as a creature of the state and the enterprise as an autonomous participant in a transnational normative order that the state can no longer fully claim to author.
Whether “principled pragmatism” ultimately proves capable of reconciling that tension, or whether the renewed treaty process begun in 2014 signals its exhaustion, remains an open question—one that this lecture, consistent with its problematizing method, leaves unresolved rather than forecloses. What the encounter between corporate governance and the Guiding Principles does make clear, however, is that the two fields can no longer be studied in isolation from one another: the doctrinal categories of corporate law—personality, purpose, fiduciary duty, choice of law—are themselves being reshaped by their encounter with a human rights framework that was never meant to alter them, and the human rights framework, in turn, cannot be fully understood without attention to the corporate governance doctrine within which the enterprises it addresses continue, in the first instance, to be constituted.
[1]Larry Catá Backer, “El Encuentro entre la Gobernanza Empresarial y los ONU Principios Rectores sobre las Empresas y los Derechos Humanos” / “Encountering Corporate Governance and the UN Guiding Principles for Business and Human Rights” (lecture, Universidad Icesi, Cali, Colombia, 19 March 2026), slide 2, “From Problem to Problematizaton: Who or What Drives Corporate Governance.” Hereinafter cited as “Backer Lecture,” by slide number. Note on method: This essay synthesizes the content of the lecture identified above, supplemented by verification of the primary United Nations instruments (the 2003 Draft Norms, Ruggie’s 2006 interim report and 2008 “Protect, Respect and Remedy” report, the 2011 Guiding Principles and their endorsing resolution, and the 2014 treaty-process resolution); by two published scholarly assessments of the Guiding Principles’ adequacy; by one prior published article by the lecture’s author addressing the same inter-systemic governance thesis; and by material drawn from several discussion-draft chapters of the lecture’s author’s in-progress book-length Commentary on the UNGP, circulated publicly on his blog, Law at the End of the Day (lcbackerblog.blogspot.com), with full-text drafts hosted on the website of the Coalition for Peace & Ethics (thecpe.org). Because that Commentary remains an unpublished, evolving discussion draft rather than a final published text, all material drawn from it is identified as a discussion draft, paraphrased rather than quoted at length, and cited to the specific chapter and, where available, section number and URL consulted, so that its provisional status is transparent to the reader. No claims, quotations, or paragraph numbers have been introduced beyond what the lecture and these sources independently confirm.
[2]Backer Lecture, slide 2.
[3]Backer Lecture, slide 4, “Problemas Fundamentales: Empresas.”
[4]Backer Lecture, slide 5, “Problemas Fundamentales: Objectivos Económicos.”
[5]Backer Lecture, slide 7, “Problemas Fundamentales: Fronteras y Globalización.”
[6]Backer Lecture, slide 7.
[7]Backer Lecture, slide 8, “Paletas de formas de gobernanza contemporáneas.”
[8]Backer Lecture, slide 9, “Paletas del Mercado: Derecho/Reglamento Privado.”
[9]Backer Lecture, slide 9.
[10]Guiding Principles on Business and Human Rights: Implementing the United Nations ‘Protect, Respect and Remedy’ Framework, U.N. Doc. A/HRC/17/31, commentary to Principle 3 (2011) (noting multilateral soft-law instruments such as the OECD Guidelines for Multinational Enterprises among the range of approaches available to states).
[11]Larry Catá Backer, The UNGP: A Commentary, Chapter 5, “From Governance Gaps to Interpretive Spaces in the UNGP: A Mapping Analysis for Commentary” (preliminary discussion draft, April 2024), § 5.3.2.1, available at https://www.thecpe.org/wp-content/uploads/2024/05/Backer_UNGP_Chp_5.pdf.
[12]Backer Lecture, slide 10, “Desafíos normativos y de política.”
[13]Backer Lecture, slide 10.
[14]Backer Lecture, slide 11, “Frontiers and Battlegrounds of Corporate Governance.”
[15]Backer Lecture, slide 13, “Antecedentes históricos (1960s–2000s).” On the New International Economic Order and its roots in the 1955 Bandung Conference, see United Nations General Assembly, Resolution 3201 (S-VI), Declaration on the Establishment of a New International Economic Order (1 May 1974).
[16]Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights, U.N. Doc. E/CN.4/Sub.2/2003/12/Rev.2 (2003); Backer Lecture, slide 13.
[17]Backer Lecture, slide 13.
[18]Larry Catá Backer, The UNGP: A Commentary, Chapter 2, “A First Reading of Definitive Text: The UNHRC Endorsement…” (preliminary discussion draft, April 2024), 14, available at https://www.thecpe.org/wp-content/uploads/2024/05/Backer_UNGP_Chp_2.pdf.
[19]Backer Lecture, slide 14, “Antecedentes históricos (2000s– ).” See also United Nations Commission on Human Rights, Decision 2004/116 (2004) (declining to take further action on the draft Norms).
[20]Backer Lecture, slide 14.
[21]John Ruggie, Protect, Respect and Remedy: A Framework for Business and Human Rights, Report of the Special Representative of the Secretary-General on the Issue of Human Rights and Transnational Corporations and Other Business Enterprises, U.N. Doc. A/HRC/8/5 (7 April 2008).
[22]Guiding Principles on Business and Human Rights: Implementing the United Nations ‘Protect, Respect and Remedy’ Framework, annexed to Report of the Special Representative of the Secretary-General, U.N. Doc. A/HRC/17/31 (21 March 2011); endorsed by U.N. Human Rights Council Resolution 17/4 (16 June 2011). See also Backer Lecture, slide 14.
[23]Backer Lecture, slide 14. On the post-2014 treaty process, see U.N. Human Rights Council Resolution 26/9 (14 July 2014), establishing an open-ended intergovernmental working group on a legally binding instrument on transnational corporations and other business enterprises with respect to human rights.
[24]John Ruggie, Promotion and Protection of Human Rights: Interim Report of the Special Representative of the Secretary-General on the Issue of Human Rights and Transnational Corporations and Other Business Enterprises, U.N. Doc. E/CN.4/2006/97, ¶ 81 (2006); Backer Lecture, slide 16.
[25]Backer Lecture, slide 17, “General Structure.”
[26]Backer Lecture, slide 18, “Principios Rectores.”
[27]Backer Lecture, slide 19, “Innovaciones novedosas,” item 1.
[28]Backer Lecture, slide 19, item 2.
[29]Backer Lecture, slide 19, item 3.
[30]Backer Lecture, slide 19, item 4.
[31]Backer Lecture, slide 19, item 5.
[32]Backer Lecture, slide 19, item 6.
[33]Backer, UNGP Commentary, Chapter 5, § 5.1, available at https://www.thecpe.org/wp-content/uploads/2024/05/Backer_UNGP_Chp_5.pdf (drawing the analogy to the U.S. constitutional doctrine of separation of powers established in Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803), and McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819)).
[34]Backer, UNGP Commentary, Chapter 5, § 5.1, available at https://www.thecpe.org/wp-content/uploads/2024/05/Backer_UNGP_Chp_5.pdf.
[35]Guiding Principles on Business and Human Rights, U.N. Doc. A/HRC/17/31, General Principles (2011); Backer Lecture, slides 21–22.
[36]Guiding Principles, General Principles; Backer Lecture, slides 21–23.
[37]Guiding Principles, General Principles; Backer Lecture, slides 21–23.
[38]Guiding Principles, Principle 1; Backer Lecture, slide 25.
[39]Guiding Principles, Principle 1 & commentary; Backer Lecture, slide 25.
[40]Guiding Principles, Principle 11 & commentary; Backer Lecture, slide 25.
[41]Guiding Principles, Principles 3, 8–9; Backer Lecture, slide 26.
[42]Guiding Principles, Principles 13–15; Backer Lecture, slide 26.
[43]Backer Lecture, slides 28–29, “Realization of that Duty/Responsibility.”
[44]Guiding Principles, Principle 31; Backer Lecture, slides 28–29.
[45]Guiding Principles, Principles 8–10; Backer Lecture, slides 31–32.
[46]Guiding Principles, Principles 4–7; Backer Lecture, slides 31–32.
[47]Backer, UNGP Commentary, Chapter 7, “The State Duty to Protect Human Rights: Foundational [Principles]” (preliminary discussion draft), available at https://thecpe.org/wp-content/uploads/2024/05/Backer_UNGP-Chp_7-1.pdf; and Chapter 11, “The State Duty to Protect Human Rights: Operational Principles/Ensuring Policy Coherence (UNGP Principles ¶¶ 8-10)” (discussion draft, November 2024), available at https://www.thecpe.org/wp-content/uploads/2024/11/Backer_UNGP-Chp_11.pdf.
[48]Backer, UNGP Commentary, Chapter 8, “The State Duty to Protect Human Rights: Operational [Principles]” (discussion draft, July 2024), commentary to UNGP Principle 3, available at https://www.thecpe.org/wp-content/uploads/2024/07/Backer_UNGP_Chp8.pdf.
[49]Guiding Principles, Principles 17–21; Backer Lecture, slides 34–35.
[50]Guiding Principles, Principles 22–24; Backer Lecture, slides 34–35.
[51]Backer, UNGP Commentary, Chapter 5, § 5.2.4, available at https://www.thecpe.org/wp-content/uploads/2024/05/Backer_UNGP_Chp_5.pdf.
[52]Backer, UNGP Commentary, Chapter 13, “The Corporate Responsibility to Respect Human Rights: Operational Principles; Policy Commitment (UNGP Principle ¶16)” (discussion draft, October 2025), §§ 13.4–13.5, available at https://www.thecpe.org/wp-content/uploads/2025/10/Backer_UNGP_Chp_13_UNGP-16.pdf.
[53]Backer Lecture, slide 36, “The Limits of Mandatory Measures.”
[54]Guiding Principles, Principles 25, 27; Backer Lecture, slides 38–39.
[55]Guiding Principles, Principles 22, 29–30; Backer Lecture, slides 38–39.
[56]Backer, UNGP Commentary, Chapter 5, § 5.2.6, available at https://www.thecpe.org/wp-content/uploads/2024/05/Backer_UNGP_Chp_5.pdf.
[57]See, e.g., David Bilchitz, “The Ruggie Framework: An Adequate Rubric for Corporate Human Rights Obligations?,” SUR—International Journal on Human Rights 7, no. 12 (2010): 199–229 (questioning whether the Guiding Principles’ non-binding structure is adequate to the scale of the human rights obligations at stake).
[58]See Susan Ariel Aaronson and Ian Higham, “Re-Righting Business: John Ruggie and the Struggle to Develop International Human Rights Standards for Transnational Firms,” Human Rights Quarterly 35, no. 2 (2013): 333–364.
[59]See U.N. Human Rights Council Resolution 26/9 (14 July 2014); Backer Lecture, slide 14.
[60]Backer Lecture, slide 41, “Y Que de la Gobernanza Empresarial?”
[61]Backer Lecture, slide 47, “UNGP: Corp Governance as Aligned Parallel Risk-Reg Structures.”
[62]Backer Lecture, slides 42–43, “Interpenetrations.”
[63]Backer Lecture, slides 42–43.
[64]Backer Lecture, slides 42–43.
[65]Backer Lecture, slides 44–45, “Conflicts and Alignments.”
[66]Backer Lecture, slides 44–45.
[67]Backer Lecture, slides 44–45.
[68]Backer, UNGP Commentary, Chapter 5, § 5.2.5, available at https://www.thecpe.org/wp-content/uploads/2024/05/Backer_UNGP_Chp_5.pdf.
[69]Backer, UNGP Commentary, Chapter 5, § 5.3.2.2, available at https://www.thecpe.org/wp-content/uploads/2024/05/Backer_UNGP_Chp_5.pdf.
[70]Backer Lecture, slides 46–48, “Putting it All Together: Norm Aligned Risk – Regulation Structures (the UNGPs) and Corporate Governance.” Cf. Larry Catá Backer, “From Institutional Misalignment to Socially Sustainable Governance: The Guiding Principles for the Implementation of the United Nation’s ‘Protect, Respect and Remedy’ and the Construction of Inter-Systemic Global Governance,” Pacific McGeorge Global Business & Development Law Journal 25 (2012): 1, available at http://ssrn.com/abstract=1922953; and Larry Catá Backer, The UNGP: A Commentary, Chapter 5, § 5.1 (preliminary discussion draft, April 2024), available at https://www.thecpe.org/wp-content/uploads/2024/05/Backer_UNGP_Chp_5.pdf, both of which develop at greater length the inter-systemic and polycentric governance thesis summarized in the lecture.
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