Sunday, December 01, 2013

At the 2nd U.N. Forum on Business and Human Rights--Reflections on Bilchitz and Deva (eds) "Human Rights Obligations of Business: Beyond the Corporate Responsibility to Respect?"

In a prior post I noted the then upcoming Second Annual United Nations Forum on Business and Human Rights, of the Working Group on the issue of human rights and transnational corporations and other business enterprises, will be held in Geneva 2-4 December 2013. (e.g., 2013 United Nations Forum on Business and Human Rights--Forum Documents Available).

I have the delightful privilege of serving as a commentator at one of the side events of this Forum, the book launch of The Human Rights Obligations of Business:  Beyond the Corporate Responsibility to Respect? (Surya Deva and David Bilchitz, eds., Cambridge University Press, 2013).  This event takes place on Monday 2 December 2013 in the Library Events Room (B-135) Building B, 1st Floor at the U.N. HQ in Geneva.  The work is important and deserves critical engagement at the highest levels for the reasons I elaborate below.

This post includes my review of The Human Rights Obligations of Business from which I will draw the comments I will make at that book launch.

In Defense of the State and the International Legal Order:
Reflections on 
Human Rights Obligations of Business: Beyond the Corporate Responsibility to Respect  
(Surya Deva and David Bilchitz, eds., Cambridge University Press, 2013)
Larry Catá Backer

The central element of Human Rights Obligations of Business is, of course, the central object of the Geneva Forum--the U.N. Guiding Principles on Business and Human Rights (the "GP"). These capped a decades long effort to articulate some sort of framework for recognizing and managing the relationship between multinational enterprises ("MNCs") and the law-state system that found its highest expression in the state based international system built up after 1945 and threats to its central relevance in the age of globalization (e.g., Backer, Larry Catá, Multinational Corporations, Transnational Law: The United Nation's Norms on the Responsibilities of Transnational Corporations as Harbinger of Corporate Responsibility in International Law. Columbia Human Rights Law Review, Vol. 37, 2006).  The contextual framework of the GP, like that of its critique, assembled in Human Rights Obligations of Business, continue an elaboration of the contextual framework within which state and business behavior can be managed within a set of common principles and practices. More specifically, elaboration can be divided into three distinct parts: (1) efforts to articulate a coherent set of human rights responsibilities of MNCs, (2) devising an effective regulatory framework within which these may be implemented, and (3) elaborating vehicles for the vindication of the rights of those damaged by human rights detrimental activities of MNCs.

It is within that context that the United Nations system has provided a space within which two great alternative visions for elaborating systems of constraining state and business behavior in the context of evolving human rights norms have been put forward.  The first, the product of 20th century legal formal internationalism, produced the U.N. Norms, an effort that proved quite controversial eventually fatal to efforts to move this effort forward.  The other, a product of the new realities of globalization and its fragile relationship with the state system within which it sought approval, eventually produced the Guiding Principles for Business and Human Rights, that whatever its lack of perfection, succeeded in becoming an important basis through which the discourse of business and human rights is being framed.

While many stakeholders now focus on the G.P. and the three pillar framework from which it arose (state duty to protect, corporate responsibility to respect, and effective remedies for adverse effects of human rights) as setting the boundaries within which discussion of the human rights effects of business may be legitimately discussed, the contributions that make up Human Rights Obligations of Business sets out an alternative vision.  It is a vision that reminds us that the consensus reflected in the G.P. is a fragile one, that the contours of that consensus have not yet been set in stone, and that the ambiguities and lacunae may move the project in different (and as yet uncharted) directions.  The contributions in Human Rights Obligations of Business engages critically with the premises, methodologies, objectives and structures pf the GP.  While the significance of the GPs is noted, this work is devoted to an expositions of the weaknesses, structural and conceptual, of the GP.  That critique, in turn, reminds us that the decades long battles over the role (and meaning) of law, the relationship of the state to the international order, the character of that international order, the continued embrace of simple systemicity in the elaboration of governance orders, and the deep suspicion of the anarchy (in the sense of order without a center) of globalization is far from over.  

Human Rights Obligations of Business provides a thorough and well argued defense of an alternative elaboration of a new world order, one based on a respect for the state system and the structures of international public governance, one grounded in the allegiance to law and vertically ordered integrated systems for the management of the behavior of states and other powerful global actors--and especially that currently untamed global actor--the MNC. (e.g., Backer, Larry Catá, On the Tension between Public and Private Governance in the Emerging Transnational Legal Order: State Ideology and Corporation in Polycentric Asymmetric Global Orders Coalition for Peace and Ethics Working Paper (April 16, 2012).  It is that allegiance that provides both the power and coherence of the contributions to that work, and also an important site for the contestation of its perspective--one which continues to have the strong support of the international human rights community of civil actors, and the emerging class of law-internationalists that see in international governance structures the better way forward from out of the law-state system. My own inclination is toward the global and away from the edifices of the law state system and its international public law based architecture (e.g., Backer, Larry Catá, On the Evolution of the United Nations’ 'Protect-Respect-Remedy' Project: The State, the Corporation and Human Rights in a Global Governance Context (June 3, 2010). Santa Clara Journal of International Law, Vol. 9, No.1, 2010; 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 (September 5, 2011). Pacific McGeorge Global Business & Development Law Journal, 2011). 

Thus fair warning: my own perspectives will inform these reflections and the often profound insights of the several contributors to this work. The editors, Professors Deva and Bilchitz provide a powerful exposition of the approach of the contributing authors and of the vision that animates the work. They note that the GP represents a development that stands out in the movement to devise well accepted structures for articulating standards, implementing them and proving an effective remedial mechanism. They note as well the substantial positive reception received by the GPs in the international community, and the speed with which the GPs have become a common reference point for debate of issues of business and human rights. But they query whether in the rush to embrace the GP, they have failed to receive the detailed and systematic critical evaluation they might need, one to which Human Rights Obligations of Business hopes to contribute.  The contributions are rich and touch on a large number of issues with a variety of perspectives, all necessary. One cannot hope to do them all justice in a brief set of reflections.  Instead, I will develop my own reflections on the Human Rights Obligations of Business through the lens of the exceptional introduction (Bilchitz and Deva, "The Human Rights Obligations of Business: A Critical Framework for the Future" Human Rights Obligations of Business Chapter 1).

These reflections will emphasize several broad-stroke points.  First,  Human Rights Obligations of Business reflect the deep and unrelenting suspicion of non-law based governance systems The concept of social norms and or societal constituted communities is viewed both as illegitimate and as ineffective against the ideal of law. (but e.g., Backer, Larry Catá, Collisions of Societal Constitutions: Hierarchical Power Arrangements and Horizontal Effects in the Management of Human Rights Regimes (May 2, 2012). Indiana Journal of Global Legal Studies, 20 (2013)). This puts the critics of the GP on a conceptual collision course with the underlying framework of the GP themselves.  The authors reject the distinction between corporate responsibility and state duty.  That reflects a notion that corporations and states ought to bear the same relationships to international law.  That is, this reflects a view that international public law must sit at the top of a single hierarchy of governance that constrains both the law system of states and the social norm system of non-state actors, and to do so directly. That is a view, though, that states continue to reject in large part, and that non-state actors sometimes view as irrelevant. While the GP picked up this nuance and nodded in its direction (though I have argued elsewhere not enough) Human Rights Obligations of Business tends to reject the distinction and the premises underlying them.  In the absence of agreement even about foundations, there is little likelihood that critical analysis will be positive except in the defense of alternative foundations of system construction.  

Second, this rejection of the legitimacy of social systems as characterized by autonomous governance characteristics makes effective critique more difficult.  At bottom it suggests a profound critique of the underlying premises of the GP rather than of its elaboration, implementation or effects. Indeed, the strain of critique that denies or rejects the importance of a sharp distinction between responsibility and duty makes it harder to critique the GP on its own terms. A rejection of the normative foundation of the GP then drives the critique.  The only possible objective of such critiques must, at bottom, be directed toward the abandonment of the GP framework itself.  While that may leave the functional structures intact, they would be directed toward an entirely different set fo objectives and employ a substantially distinct language and orientation.  But it also limits the influence of the critique, much the way that Western critiques of the Chinese constitutional system, grounded in the notion that its premises are illegitimate and must transition to one based on different founding norms, may fall on deaf ears.

Third, and simultaneously, the work evidences the continued strength of the notion that, though there is a deep commitment to law (traditionally understood), there is also a profound suspicion of the state as an unfettered apparatus of power. The human rights and business project continues to reflect the idea, first brought into prominence after the last World War, that states must be managed under a law-like framework overseen by the community of states through international organizations through which their collective interests can be developed and applied. Under this view international law must eventually assume a place on the hierarchy of law well above that of the laws of domestic legal orders, including the constitutions of those orders. Ironically, given the thrust of the critique, this is a view that the critics of the GP share with the GP's authors. 

Fourth, Human Rights Obligations of Business take a view of the business of regulation that is in some sense profoundly different from that adopted in the GP.  This reflects a deep division among civil society and state actors about the nature and role of regulation of business at the supra-national (above the state) and transnational (beyond the state) levels.  On the one hand, the critics of the GP were disappointed that the efforts leading to the GP did not produce a specific and particularized code of business and human rights regulation.  On the other, the GP's authors appear to have sought to construct a blended legal-societal constitutional order framed around the GP as a constituting rather than as a regulatory instrument. The battle between specificity and cultivated ambiguity as the basis for the grounding of a regulatory order continues unabated around the GP.  And in that there is sometimes what appears to be almost a nostalgia for the abandoned U.N. Norms, which the GP served to supplant, or at least some of them, for the project of hardening social norms through the mechanisms of law and the state/international system. Soft law is too soft because it doesn't mimic the forms and sources of law.  But this critique misses the realities of the elaboration of governance systems autonomous of the state; these societally constituted governance communities provide the focus of the responsibility to respect principles in recognizing  the role of governance rules autonomous of the state and yet binding on enterprises, and on their relation to the law systems of state sand the international public organization communities.

Fifth, Human Rights Obligations of Business reflects a legitimacy-affecting suspicion of the pragmatism at the heart of the Protect-Respect-Remedy project and the resulting elaboration of the GP.  The aphorism usually attributed to Bismarck--"Laws, like sausages, cease to inspire respect in proportion as we know how they are made"--applies with substantial force to the GP.  Born out of what, for the international community, was a large measure of consultation and engagement (though measure of transparency might be judged by the proportion of specific views incorporated into the GP), the openness of the choices made themselves became objects for critique. The human rights community appears to still be smarting from the unwillingness of the SRSG to wholly adopt their perspective (and yet the business community more quietly shares that view in part), and to some extent that disappointment is attributed to the Machiavellian calculus that appears to be inherent in pragmatism.  Yet the compromise that was the glue that bound together enough groups with irreconcilable views, might well attest tot he success rather than to the failure of the GP.  Still, that compromise does raise issues of application that the contributors to Human Rights Obligations of Business correctly point.  They posit an alternative pragmatism, one grounded in non-negotiable aspirational principles with compromise on realization VERSUS the SRSG principled pragmatism grounded in generalized compromise on principle and practice with the expectation of building up from a modest beginning through the cultivation of custom and practice. Thus to the SRSG's organic process Bilchitzand Deva offer a well constructed instrumentalism. 

Sixth, the contributions, in the aggregate  correctly point to the weakness of but the potential for the remedial pillar and the remedies section of the GP.  Bilchitz and Deva correctly point to the conceptual weakness of a remedial pillar that appears to be derivative in nature--the articulation of a consequences of the substantive duties of state sand responsibilities of MNCs. It is certainly true that the remedial obligations of states and the autonomous remediation obligations are foundational and critically important consequence of the state duty and MNC responsibility.  Yet, the SRSG may have missed an opportunity to liberate the remedial pillar from its embedding in solely either the judicial apparatus of states or the remedial mechanisms of MNCs. The failure here to ground the substantive element of the remedial pillar in the human dignity interests of individuals and groups makes the GP blind to the possibility of the organization of legitimate remedial apparatus autonomous of states or MNCs.  These include remedial mechanism organized through public international bodies or otherwise through  governance collectives.  And it offered a basis for engagement with the victims of adverse human rights impacts (through pillar 3), something that the SRSG chose to avoid, even as states were engaged through pillar one and MNCs through pillar 2.

Bilchitz and Deva organize the analysis, and their collective evaluation of the GP,  of the GP around four questions.  The first question related to process and methodology.  These focus on the issue of the legitimacy weakening effects of principled pragmatism. The second focuses on the normative grounding of the GP.  It considers the authority of the binding elements of the GP and the question of the extent to which MNCs ought to have direct binding human rights obligations in the first place. This touches on the law-governance issue at the core of the debates between proponents of the state system and those of societally constituted global systems. The third question considers the actual content of the GP, that is, whether in fact it works as system in delineating corporate human rights obligations.  This touches on the viability of the state-corporate divide in international law and the issue of complicity and extraterritoriality (but of what remains something of a mystery). The fourth question  considers the issue  of functional-formal accountability.  This focuses on the people who suffer adverse human rights effects of MNC activity and focuses on the effectiveness of the remedial pillar as theory and in action.  Two key issues considered here are transparency (empowerment in their discursive language) and effectiveness (a functional analysis). The individual contributions are organized around these four questions.  Fourteen chapters (including the contribution of the Introduction) then flesh out a variety of critical perspectives on the GP.  The work ends with a consideration of the issues that require considerable development and a suggestion for organizing the work and objectives of the UN Working Group going forward. The thesis animating Human Rights Obligations of Business is straightforward: "The book does not claim that the Framework and the GPs are devoid of any merit.  Nevertheless, we believe that critical insights will be vital to further the cause of putting in place a robust framework regarding the human rights obligations of companies."  (Bilchitz and Deva, supra, 4).  Yet by the end of the work, it becomes clear that what the authors offer is not so much a set of critical insights as an alternative vision for the development of a framework for managing the behaviors of MNCs across states.

Bilchitz and Deva do a nice job of compressing a long and complex history that brought the GP project to fruition. (Bilchitz and Deva, supra, 4-10).  That rendition, though, is not without its value to set up the arguments developed later.  They note the failures of the original efforts to construct a code of business and human rights  growing out of the New International Economic Order popular among developing nations and the U.N. elite in the 1970s-90s. There is something of an unfair critique of the SRSG's assertion that human rights did not feature during this period. Indeed, Bilchitz and Deva are correct to point out that the draft code of that period touched on human rights (though ironically using the language of "respect for human rights" they criticize as insufficient later), but the SRSG was not wrong to suggest that human rights was not a central element of that project.

Bilchitz and Deva's description of the next phase, ultimately producing the U.N. Norms nicely condensed the emerging strains of approaches to the issue of business and human rights that confront us today. They point out the difference in approaches between the U.N. apparatus in Geneva--focusing on the continuation of code drafting that produced the Norms--and the distinct approach developed in the U.N. apparatus in New York under the tutelage of Kofi Annan, one in which the future SRSG had a strong hand and which focused on social norms principles and soft law rather than on public international law and behavior rules. That division between New York and Geneva, ironically enough, continues to mark the borders of the conceptual rifts between the current approaches to the governance of business and human rights in the transnational sphere.  Civil society preferred hard law and code making enforceable through states and the business community (and states resisting international public law hegemony) demurred.  Business and developed states preferred soft law and principles implemented through markets and thus compatible with emerging globalization structures (that clearly favored their interests) and civil society demurred.  The Geneva Working Group ultimately produced the U.N. Norms, and failure, but one responsive to the desires of civil society and the proponents of a strong and unified public international law based normative order. But this was rejected by states, which saw the effort as a threat to their autonomy and recoiled at extending law systems directly to non-state actors. Into this failure, the New York approach, grounded in the U.N. Global Compact (with respect to which the SRSG played a great role), markets and a smaller threat to state autonomy, proved more appealing to the state actors who eventually had to accept or reject any governance framework. Bilchitz and Deva focus on the proliferation of bilateral treaties and the emergence of the WTO architecture.  They are right, at least to the extent that this serves to underline the power of globalization to upset the old assumptions and power relationships.

Bilchitz and Deva then use this background to describe what set the SRSG's efforts apart from prior efforts. They point to three significant differences form prior efforts, differences that serve as a source of later critique.  The first was the use of extensive consultation, except (and this rankles with the authors) an unwillingness to meet with the victims of human rights abuse.  The second was the willingness to use a bottom up approach to international law making (though I note that the SRSG never suggested that the GP project was meant to make law).  The problem, already noted here, was that bottom up appeared to crowd out civil society in the GP process (or at least reduce their influence from that they had exercised in the production of the U.N. Norms--the issue of "sour grapes" never comes up though it might) and provide greater influence to business who had backed the Global Compact project beforehand. (see, e.g., Bilchitz and Deva, at 8, note 30).  The third was the use of principled pragmatism as the animating notion of the GP project. Bilchitz and Deva acknowledge that this principled pragmatism might have contributed to the cobbling together of the consensus among key stakeholders necessary to move the GP project forward.  But they cite approvingly to those elements of the academic community that had been behind the development of the failed U.N. Norms for criticism of the concept and its application.  (Ibid., at 9).  And repeat a charge long leveled at the SRSG during the process leading up to the adoption of the GP, that he favored the business community, a charge that I have found to be less than convincing both in direct relationship with the SRSG and in engagement with the elaboration of what became the GP (whatever my disagreements with some of its terms).

But this elaboration, as well as the sense of where the SRSG's loyalties were, help structure the critique that emerges from the history of the GP. Bilchitz and Deva then engage in a sophisticated and critical way with the shortcomings and omissions of the work of the SRSG.  These are divided into five categories.  The first they call "Process: consensus without content?" (Ibid., 10-11).  They credit the process of consultation as enhancing the legitimacy of the process.  But they fault the SRSG because of the uneven of the impact among different classes of stakeholder and because of the SRSG's refusal to meet with victims.  Though to their credit, Bilchitz and Deva acknowledge that this decision might have been made in good faith to advance the project of the GP. The consultation process also built consensus, a consensus critical to the success of the GP. But Bilchitz and Deva suggest that there was a high price paid for consensus--the need to avoid the hard issues for business and for states in the management of the human rights effects of business activity.  Those hard issues included the need to advance a positive obligation on states  to regulate MNCs extraterritorially, and the need to formulate legally binding obligations directly applicable to MNCs.  Lastly, legitimacy through consultation and consensus was meant to further the project of regulatory coherence, a project that the SRSG emphasized throughout his mandate.  Bilchitz and Deva suggest that what appears to be laudable, a project of alignment as they call it, may have a downside.  Rather than produce deep coherence, the SRSG may merely have produced an agreement to use the same vocabulary to cover quite distinct and inconsistent meaning and applications. This surface coherence might they suggest produce more harm than good, creating a conceptual cage beyond which there was little legitimacy or consensus possible. Thus, the push for coherence or alignment substantially constrained other initiatives "that sought to go beyond these documents and address their shortcomings."  (Ibid., 11). 

These insights, of course, produce their own counter points.  Let me make a few briefly.  First, the issue of extraterritoriality was substantially more problematic.  Two issues stand out.  The first was the problem of using extraterritoriality as a cover for advancing national interests onto the territory of host states.  Neo colonialism and abuse of state power in the service of national (rather than international) interest, already a problem in the so-called horizontal and equal relationships among states might be exacerbated and would be resisted, especially when the extraterritorial application was coming from former colonial powers back to their former possessions. The second was that it was not clear what was to be applied extraterritorially.  If states would apply international law, the issue then revolved around which set of international law would be applied extraterritorially.  Certainly, for example, the United States would be unlikely to apply the Covenant on Social, Cultural and Economic Rights extraterritorially, even in states where it had been embraced because the U.S. has never adopted it. And it would be difficult to determine what if any international rules would be applied where by whom and for whose benefit.  On the other hand there is something of a small effort that may bear fruit in this respect. (e.g., Backer, Larry Catá, Sovereign Investing and Markets-Based Transnational Legislative Power: The Norwegian Sovereign Wealth Fund in Global Markets (November 18, 2012). American University International Law Review 29:--(forthcoming 2013); Coalition for Peace &Ethics Working Paper No. 11/11).

Sarah Seck has also written insightfully about Third World Approaches to International Law (TWAIL) and has made a strong case for the reconceptualization of extraterritoriality, not as a means of disguising projections of state power (and national interests) abroad, but of enlisting all states in a coherent effort to apply the structures of international law across borders (discussed inSara Seck on the Possibilities and Limits of Extraterritoriality in a Corporate Social Responsibility and Human Rights Context, Law at the End of the Day Sept. 6, 2012). Extraterritoriality, in this sense, has little to do with territory or the exportation of the domestic legal orders of powerful states, but rather speaks to a method of implementing systems grounded in the primacy of international law across domestic legal orders. It is this form of extraterritoriality that is championed in the work.  And indeed, Chapter 11 makes a strong case for the use of extraterritoriality in the  projection of international law might well empower people in host states where local government is unable or unwilling to transpose international norms into national practice. I am sympathetic (Backer, Larry Catá, Sovereign Investing and Markets-Based Transnational Legislative Power, supra). But here again, this is a conception of international law unfettered by the authority of states to pick and choose what from among the conventions of international law it will apply within its borders, and one that would likely be resisted by states whose views of either the binding nature of particular rules of international law or its interpretation may be different from those states that seek to impose their view across borders. And it leaves open the possibility of abuse, where powerful states opposed to emerging international norms might use their extraterritorial laws to constrain rather than enhance respect for international norms abroad by the MNCs under its control.   This is not so much a controversial issue as one that goes to the heart of the nature and character of public international law. For this there is neither solution nor consensus as yet.

The formulation of legally binding human rights obligations beyond uniform domestic application of international law is equally problematic on similar grounds. That one would raise the issue of binding rules directly applicable on MNCs after the fiasco of the U.N. Norms is surprising. That it continues to appeal to important segments of the civil society and academic spheres suggests that the resolution of the battle over the Norms and the effect of its failure has not had a preclusive effect on the willingness of important stakeholders to seek to revisit the Norms approach, and to criticize the GP for their failure to replicate it. Yet the issue of the mechanisms for binding MNCs to their human rights responsibilities is a strong one, and to some extent, there is merit to the concern that the GPs do not fully frame the mechanisms, beyond law, within which MNCs can be held accountable under the social norm framework that makes up a portion of the second pillar responsibility to respect as memorialized in the GP. The issue, though, ought not be to focused so much on whether there ought to be something law-like, but rather on whether mechanisms can be structured to constrain MNCs reliably beyond law.

Likewise the criticism of the SRSG’s regulatory coherence project is not so much misplaced as de-contextualized. It is true enough that the SRSG’s search for coherence (alignment) has produced a move to frame the discourse of business and human rights in the terms of the GP. It is also true that words are inherently ambiguous and the use of a single word by multiple communities can as easily mask difference as overcome it. And it is true as well that the GP must do more than provide the covering of a singular vocabulary in order to develop the deep coherence that is the mark of a sustainable system founded on adherence to the same set of animating principles. But the problems of surface alignment suggested by Bilchitz and Deva are as much a description of an ancient problem of the discourse of human rights within international public law as it is one of the difficulties of the GP project. That is not to belittle the criticism as much as it is to suggest that the issue plagues all transnational law—from the CISG to the governance language of business and human rights. Thus, one takes as correct the insight that alignment is an issue that requires much development for a maturing GP system. Beyond that lies the ordinary project of harmonious interpretation and construction of meaning among a disparate community of stakeholders.

The second  category is called, "Principled pragmatism: a flawed methodology?" It seeks to critically engage is principled pragmatism itself, a GP approach already identified as amenable to such analysis. (Ibid., 12) Here Bilchitz and Deva make an insightful point, one reflected in the contributions that follow. They argue that the inter-relation of principle and pragmatism is not entirely clear, wondering when principle is “sacrificed on the alter of pragmatism, and when does it guide compromise to be made with real life constraints.” (Ibid., 12). They argue that pragmatism is not entirely new to human rights discourse, noting its importance in the elaboration of the Covenant on Economic, Social and Cultural Rights (993 UNTS 3, art. 2). But their view of pragmatism is substantially different from that under the GPs. For Bilchitz and Deva there can be no compromise on principle—but there can be substantial compromise on the full realization of principle in light of economic, social and political realities. But that is not the sort of compromise at the heart of principled pragmatism. They argue: “When it comes to setting aspirational norms, human rights ought to be principled. The SRSG, however, sought to introduce pragmatism at every level of his work.” (Ibid). As a consequence, they conclude that the SRSG “has (in)advertantly set the threshold of corporate human rights obligations at a very low level.” (Ibid). They argue for an alternative reading of principled pragmatism in which the pragmatism comes only after the development of principle and then applies only to “outline a roadmap for the progressive escalation of corporate obligations.” (Ibid).

This difference in vision is important and substantial. It presents a fundamental approach to the elaboration of human rights norms quite different form that embraced by the SRSG. The application of this approach to pragmatism would have likely produced a far different set of GPs. But in place of bottom up organic development of human rights norms for business derived from out of current practice and moving toward something better (the better being defined by the set of aspirational norms like those of the ICSCPR) it might have again reverted to the traditional top down articulation of principle with respect to which there is clearly no consensus among the critical stakeholders. It is one thing to wrest consensus from a single group of actors—states for example—though that has proven difficult enough. It is quite another, within the logic of globalization, to extract consensus from a heterogeneous herd of shifting governance communities. It would certainly have been more elegant and a better approach to instrumentals use of international norm power for the management of business to have started from high aspirational principle unreached. But within globalization it might well be more effective to drive a more organic process like that of the SRSG’s principled pragmatism. The initial result is exactly that which Bilchitz and Deva criticize—one that produces a low initial thresh hold. And the Bilchitz and Deva critique becomes substantially more powerful if that is the full extent of the human rights obligations of business. But if the SRSG is correct, these are initial standards grounded on attainable practice, then principled pragmatism might be a useful method of building up practice. In the end, both the SRSG and Bilchitz and Deva seek the same goal. But the SRSG would work his way up to principle from practice and Bilchitz and Deva would work their way up to from principle to practice.

The third "category, "Source of corporate responsibility: social expectations?," is grouped around the issue of sources of norms and a strong critique of social norms as a basis for corporate governance regulation (Ibid., 12-13). This is a critique that is forcefully made by a number of contributors.  In large measure, this category nicely summarizes the core of the critique of the SRSG's approach and the resulting structures of the GP.  They start with something that they posit as something of a contradiction in the SRSG's approach.  They argue that though  the SRSG breaks forcefully with the approach of the Norms and denies any direct human rights obligations of corporations under international law, he then recommends that MNCs ascertain their human rights obligations by reference to international law, the International Bill of Rights  and the ILO Declaration on Fundamental Principles and Rights at Work. This contradiction, they argue, is resolved by  invoking  what Bilchitz and Deva call the social expectations rationale, which enabled the SRSG to present without much empirical support the responsibility to respect as a global standard of expected conduct. (Ibid., 12-13).  But this grounding in social norms they find problematic precisely because of the nature of social norms.They posit that social norms are limited because they remain voluntary.  And because they remain voluntary they also suggest human rights as an optional responsibility. (Ibid., 13).  They reject the compulsion inherent in the social license to operate concept of the SRSG, asserting that "human rights norms should be a non-negotiable precondition for doing business, rather than becoming a matter of expediency." (Ibid). 

The issue of social norms and of the workability of polycentric systems lies at the heart of this critique.  Though there are some, including me, who view polycentricity as the emerging model of governance in the global orders that comprise globalization (e.g., A Conversation About Polycentricity in Governance Systems Beyond the State), the idea of the possibility of legitimate systems beyond the state or public international organizations, and systems not grounded in or bound ultimately to state based law systems, is still quite contentious.  There are many who remain skeptical or suspicious. The problem goes beyond the ability of social norm systems to mimic perfectly the hierarchical and monopolistic systems of law that have grown up around the state (though they also exist only in perfect form within academic writing and in the musings of moralists).   The problem runs to the rejection of notions that governance can be molded as a coercive instrument of managing conduct other than through law, and that law must ultimately be constituted as a series of commands legitimated by the democratically organized governmental apparatus from which it ought to originate.  Yet one of the most radical and principled ideas that emerged from the SRSG's mandate was precisely the embrace of the idea that within globalization distinct systems of governance, compelling in accordance with their own logic, were emerging.  More importantly, law itself was too narrow a basis for understanding the governance constraints that affected corporate behavior.

What is described, effectively, is polycentric norm making among multiple systems of functionally differentiated governance communities that are required to interact with each other in complex and dynamic ways. Incompatible systems, law and norm--must effectively find a way to communicate and to harmonize values and relevance for their constituting communities, whether these are citizens, consumer, employees, or investors. Larry Catá Backer, On Challenges to Operationalizing a Transnational Framework for Business and Human Rights--the View From Geneva, Law at the End of the Day, Oct. 13, 2009.
 Indeed, unlike Bilchitz and Deva, I have argued that the SRSG's polycentric governance project did not go far enough to detach the corporate responsibility from the state duty to protect human rights.  I had hoped for a liberation of human rights from the narrow interests politics of state engagement with internationalizing human rights norms and hoped for a framework within which international public and private organizations could develop these norms and apply them without the hindrance of the territorially limited law-state system.  Within its own logic, and in the context of emerging complex non-state governance orders, a recognition of an-archy in governance might liberate norm production from state control and permit more active engagement directly by civil society elements, including those highly critical of the SRSG's approach and the GP.  But a rejection of the legitimacy of polycentric governance, of societal constitution, and of social norms as behavior drivers, strijes at the heart of the innovations attempted, even tepidly, by the SRSG.  The rest of the criticism elaborated quite well in the contributions, naturally follow.

The fourth category, "Pillars: an adequate response to the challenges?" considers the weaknesses of the three pillar structure (state duty to protect, corporate responsibility to respect human rights, and rights to remedy) at the heart of the organization fo the GPs. (Bilchitz and Deva, supra, 13-16).  The state duty is criticized as far too traditional and conventional.  They, like especially Augenstein and Kinley (chapter 11), make a powerful case for the direct application of international obligations to MNCs. They fault the SRSG for failing to embrace this position.  However, it is possible to read the GPs as indirectly nudging states in that direction.  The GPs are grounded int he assumption that states are bound by international law whatever the peculiarities of their domestic legal orders.  To the extent that international normative obligations control, these would effectively require states to act as a conduit fore the application of these norms directly to MNCs.  States that would reject the idea that international law/obligations apply directly to MNCs are also likely to reject the notion that international law binds states directly, even when they fail to consent. Moreover, here principled pragmatism rears its head again--while it might be possible to argue for direct effect, and the U.N. Norms are grounded to some extent on that notion, any effort to successfully bring such a governance framework through to approval would likely be unsuccessful. Here again, the issue of extraterritoriality is raised again--this time suggesting the need for powerful home states to impose their domestic legal orders (incorporating human rights norms) on weaker states on account of conflicts, weak governance, authoritarian governance, or the lack of will or capacity to act themselves.  But the counter issue of using human rights as a thin veil to recreate the 19th century system of partial or diminished sovereignty, to be determined by the law exporting state, is a substantial likelihood under the system proposed. Indeed, when coupled with the power of states to determine whether and what international norms they may desire  to accede, the possibility of unequal bargaining, and interference with the domestic affairs of former colonial territories may undo whatever benefit to human rights regimes there might be in encouraging string developed states to export their versions of international human rights through their MNCs.

Likewise, it is no surprise that the distinction between state duty and corporate responsibility is rejected, at least to the extent that they suggest distinct based for norms and conduct. As we have seen, that rejection must follow from their rejection of the limited application of public international law directly to MNCs. Interestingly, such an approach produces a variant of polycentricity as well.  International law would serve as a vehicle to create coherence among state and non-state governance frameworks.  But state and non-state actors would then have substantial stakes in forming international law, which would lose its character as the product, though indirect, of the exercise of the will popular will in democratic societies.  That implication is radical.  But it is interesting as well.  Law at the state level would necessarily acquire a meaning distinct from and more narrow than law at the international level.  The later could be understood as the binding rules for governance communities who by participating in their creation agree thereby to be bound.

The three pillar framework is also faulted for the ambiguity of its rules relating to corporate responsibilities and human rights due diligence (Bilchitz ad Deva 15). Yet, at bottom this is a fundamental criticism, earlier developed, of the form of the GP and their function.  Bilchitz and Deva would have a law code; the SRSG has given a document in constitutional form as a framing instrument.  The former is elaborate and precise.  It is meant to aggregate commands into a logical and comprehensive system.  The later is meant to provide a framework for governance over a long term and to cover contingencies beyond the imagination of its authors--to that end it is designed to cultivate ambiguity.  I am reminded of Justice Marshall's discussion of the nature of constitutions and constitutional construction in McColloch v. Maryland, 17 U.S. 316 (1819) applicable as much to the drafting of a framework instrument, like the GPs as it is to the drafting and construction of a constitution.

Bilchitz and Deva criticize the GPs because of its failures as a legal code--it is far to ambiguous and incomplete. Those lacunae create a huge potential for abuse or may reduce the GP to irrelevance. If, in fact, the GP attempted to codify the duties and obligations of state sand MNCs, their point would be well taken.  But is more likely that the object was to produce a framing document with constitutional flavor.  The SRSG never argued he was drafting a code--indeed the SRSG at times appeared to go out of his way to suggest that he was not making new law (consider the initial chapeau principles of the GP). As a consequence ambiguity and flexibility are necessary and form the core of the GP. Yet here as well Bilchitz and Deva make an interesting critique.  Assuming the constitutional character of the GP, does it fail as constitution as well? One can be sympathetic to the argument that as a constitutional document the GP fail to provide legitimate structures for constitutional construction and elaboration of the principles as applied in everyday contexts by states and MNCs. This is a project that requires some additional work.  Perhaps the OECD will fill this hole--they have moved to incorporate the CP into their Guidelines for Multinational Enterprises which can be construed and applied through the NCP system (e.g., Backer, Larry Catá, Rights and Accountability in Development (Raid) V Das Air and Global Witness V Afrimex: Small Steps Toward an Autonomous Transnational Legal System for the Regulation of Multinational Corporations (2010). Melbourne Journal of International Law, Vol. 10).  On the other hand, the GP might well find a more authoritative and legally binding home through incorporation into the jurisprudence fo regional human rights organizations, organizations well positioned to produce the sort of legal construction and application that would bridge the gaps between the social norm and international law bases of state duty and corporate responsibility. It is far too early to tell the direction of this GP construction and application project.  Perhaps the UN Working Group will consider th development of an organizational apparatus whose purpose would be to consider the application of the GP to situations brought for consideration by complaining parties in new and innovative ways.

The most interesting critique is of the remedial pillar, the portion of the GPs which by most measures is the weakest link among the Pillars and in the GP.  Bilchitz and Deva are right to argue that the remedial pillar remains curiously attached to the state duty and corporate responsibility pillars.  It ought to be autonomous and focused not on the state or the MNC, but on the victims of MNC and state bad conduct. Bilchitz and Deva suggest that non-judicial mechanisms are privileged in the remedial pillar; that may be true but even here there is a preference for state based mechanisms over MNC mechanisms.  That is a serious weakness of a GP the aim of which is to do no harm and for which MNCs are charged with a substantial responsibility to mitigate.

I might go further.  It seems to me that the logic of the GP themselves suggests that the foundation of the remedial pillar does not arise as a consequence of the duty of states and the responsibilities of MNCs. Instead it ought to be understood as arising from the autonomous  human dignity interests of the individuals and communities.  These human dignity interests necessarily include a power to seek remedies for adverse impacts on dignity interests that are directed against states and MNCs.  The obligation thus does not proceed consequentially, as a function of state duty or MNC responsibility, and thus bound by the borders and character of that duty or responsibility, to rights bearers as objects of obligation.  Rather, it proceeds from the fundamental character of human dignity that is applied against states and MNCs by whatever means necessary, including through mechanics and processes developed by and through states and MNCs. If there is much work to do by the UN Working Group, then the remedial pillar is probably the best place to focus those efforts. This would be especially important in helping frame operational level grievance mechanisms.  While it is true that flexibility and context matter, they might well be balanced by the basic ingredients of a sense of justice--certainty and predictability in which all stakeholders appear to have a role. 

The last category, "Too many bypassed questions?" is in many ways the most important. (Bichitz and Deva, 16-17).   In many ways all of the contributions to Human Rights Obligations of Business all focus on several aspects of the theme of this category.  Here consensus gets in the way of a good job.  Yet, of course, consensus and contention avoidance might well have been the only way to get even the GPs approved.  And the SRSG made it clear from the beginning, with the embrace of principled pragmatism, that any step forward that was endorsed, even a small one, would be a great victory after over forty years of ineffective but high minded efforts at structuring a governance framework for business and human rights.

On which ever side of that debate one falls, Bilchitz and Deva do identify well those areas that civil society, especially, believe that a clearer stance is necessary, even going forward on the basis fo the GP.  These include several areas that key civil society elements have long sought, and unsuccessfully, form the SSGR.  The first is a more exact list of the sources of the human rights obligations of MNCs.  There is a sort of short run merit to this position--it gets MNCs thinking far more precisely about the extent of obligations they might incur. But then  what one may wind up with is a ceiling on rights, rather than a floor. And again, the value of this approach is reduced as the role of the GP changes form something like a law code to something like a framework (constituting) document.  If one believes the SRSG that the GP is a framework document, then the ambiguous reference to the catalog of relevant rights might be better understood as providing a floor rather than a ceiling.  Indeed, the  Commentary to GP 12 appears to make this clear--provide a list of core rights and expect that context, and eventually practice, may require addition and modification.

And, indeed, this last point bridges to Bichitz and Deva's second category of bypassed questions.  They note that "the GPs neither explicitly prescribe any direct environmental responsibilities of companies nor refer to any environmental convention or declaration.  Similarly, women, children and indigenous people are treated no better." (Ibid., 17).  That is true enough, but these issues are not ignored indirectly.  Again, the Commentary to GP 12 makes explicit reference to a broad array of human rights instruments:
 For instance, enterprises should respect the human rights of individuals belonging to specific groups or populations that require particular attention, where they may have adverse human rights impacts on them. In this connection, United Nations instruments have elaborated further on the rights of indigenous peoples; women; national or ethnic, religious and linguistic minorities; children; persons with disabilities; and migrant workers and their families. Moreover, in situations of armed conflict enterprises should respect the standards of international humanitarian law. (GP 12 Commentary).
The judgement of the effect of this treatment  depends, again, on the character of the GP.  Were it a law code, then the organization of GP 12 is indeed problematic.  But as a framing document, perhaps far less so.  The premise, in this case, makes the argument.

Bilchitz and Deva thus construct a powerful critique of the foundational premises and the operationalization of the Protect-Respect-Remedy project through the GP.  Their critique reminds us that the basic normative assumptions that separate the GP from the U.N. Norms remain both unresolved and continue to deeply divide the "human rights" communities. To embrace The Human Rights of Business critique so masterfully put together by Bilchitz and Deva one must embrace as well the basic underlying premises on which that critique is built.  These tend to view with suspicion MNC transnational governance built on social norms, they tend to embrace a view of the international state system in ways that find extraterritoriality less problematic, and they tend to accept the notion that MNCs are directly obliged under international law. (but see José E. Alvarez, Are Corporations "Subjects" of International Law?, Santa Clara Journal of International Law 9(1):1 (2011)). They view principle as non-negotiable, though the path to consensus on principle as undefined.  They would confine pragmatism to operationalization but not to norm creation, though they must make room for engagement by those who may not share their views on principles or the place of MNCs in the international normative order.  Though they are prepared to make a space for multiple sources of governance, they would privilege law and the state, though only when well constrained by the normative projects of the community of nations (and enterprises?) under international public law. To embrace the SRSG's approach to the GP, a different set of premises are privileged.

1 comment:

J. Paul Martin said...

I am surprised to be the first to comment. The modern human rights movement has generally been inspired by the desire to eliminate serious discrimination and abuse against our fellow human beings. The search for remedies began with states, persuading them to adopt rules and institutions that could monitor abuses and bring some level of redress. Today, the power of many states is dwarfed by that of increasing numbers of commercial enterprises whose activities have positive but also serious negative outcomes for human beings ranging from their own employees to families living on the toxic waste of a century ago. Thus the core question of the book is the degree to which the GP provides remedies and protects the human beings who suffer negative outcomes as a result of corporate activity. This would seem to be a reasonable goal and criterion for proposed means such as the GP. The current stature of the GP (and related human rights activities) contrasts dramatically with the stringency and levels of enforcement enjoyed by the other, real-life norms that govern corporate activity, notably, the WTO, intellectual property, product standards, domestic taxation etc., not to mention quarterly earnings. Faced with them, the GP are a tiny sideshow and the corporate world knows it.