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

Abstract

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

Keywords: interpretation, polycentricity, human rights due diligence, regulatory intermediaries, principles-based regulation

JEL Classification: K0, K1, K3