Tuesday, December 03, 2013

The 2nd U.N. Forum on Busness and Human Rights Live Streaming and Thoughts on Trends in Managing Business Behaviors




The plenary sessions of the 2013 UN Forum on Business and Human Rights, held in Geneva on 2–4 December are being streamed.

Watch the plenary sessions of the Forum - Live streaming.


The plenary sessions offered few surprises.  Most of the major stakeholders--states, MNCs and civil society actors--continue to grasp onto those doctrines and approaches that are most advantageous to each. What appears to have changed is the rhetorical context in which these  discourses are ow framed.  The UN Guiding Principles has at least for the moment at least succeeded in providing a common language through which these groups can continue to further their interests.,  But now those interests appear constrained (if only loosely and rhetorically for the moment) by the principles of the Guiding Principles framework. Curiously, international organizations appear to have adopted a passive aggressive approach--aggressively embracing the conceptual framework of the Guiding Principles, but leaving its operationalization, so exceedingly dependent on supra- and trans-national governance communities, to states and others.  Thus, for example, the focus on extraterritoriality lends itself to the augmentation of the hegemony of those states, some of which tend to be the most skeptical about the GP project.  Freeing business from the constraints of social norms and the pressure of key consumer, labor and investor communities (organized globally, permits the fracture within which MNC abuse strategically compelling) may be practiced.  Leaving civil society to its own devices produces both nihilism and extremism, grounded in principle and passion, that substantially reduces the relevance and effectiveness of civil society efforts.

It was regrettable to watch as states, business elements and a mass of civil society (and others) each spoke through and at each other.  That division built into the bones of the process of elaborating the GPs tends to convert fora such as this to ironic reflections of the last Estates General of Ancien Regime France, and might likely produce the same effects, in the end.  That is a state of affairs that either must change or the scope and effectiveness of the Guiding Principles will be impeded and narrowed.  Fragmentation and incoherence propelled the GPs to endorsement.  It would be regrettable if international public bodies determine that their highest and best use is to merely lease space in their buildings where heavily segregated stakeholders can continue to talk past each other.  Sadly that appears still to be the case.  The SRSG envisioned the creation of a space in which the principal actors in the context of the human rights effects of business might align their interests and develop common cultures respectful of the business imperative to profit (in ways to foster the welfare of its stakeholders including its investors and lenders), states to govern (in ways that give effect to the democratic will of their respective policies), international organizations (in ways that enhance the elaboration of common norms), and civil society (in ways that give effect to their vital role of monitoring and accountability). It should be a priority of the organization that endorsed this vision to protect it by encouraging free discussion and by reminding those engaged about the basic commitment to the business and human rights framework endorsed.

It was regrettable as well to watch the representatives of business that chose to speak to seek to hide behind the skirts of states, states whose dignity they tend to ignore when it otherwise suits them.  Business now speak of helping government bring the rule of law home and lament the lack of strong governance structures precisely in those states where it might be thought that the absence of both has been used sometimes to advantage.  Likewise it is odd to hear business elements speak to the limits of their obligations by reference to the highly compartmentalized domestic legal orders of states, each limited to the territories in which they assert authority and each focused solely on those portions of supply chains and subsidiaries directly subject to their jurisdiction under traditional principles. This suggests that at least with respect to some elements of business, the last seven years of dialogue leading to the GP consensus might might not have occurred at all.  I am sure this exaggerated view does not reflect a general consensus among business elements, but its aggressive assertion might be a cause of worry.

But civil society has done less than it might appear to move the GP project forward.  Fragmented and limited by the logic of their own internal organization and the desires of the communities they represent, some civil society elements gave the appearance of both rejecting the GP approach and simultaneously declaring that it was a failure for not having produced spectacular results, as measured by their own metrics. While the interventions of business sought to essentialize the world of governance, and restrict it to its most narrow and traditional jurisdictional bases, civil society interventions sought to fragment discussion to the listing of a litany of highly particularized wrongs in need (and quite rightly to be sure) of redress.  They also look to law, and thus away form the GP, though either at the national or international level.

This continued balkanization and the possibility that the absence of quick "profound" progress to which stakeholders might point may weaken the GP project.  That has produced two very new trends that might grow in the coming years.  The first is the curious transformation of the second pillar responsibility to respect human rights (operationalized in part through the GP human rights due diligence mechanics) from a source of privatizing international norms into the culture of corporate activities and the social norm structures of globalized economic activity beyond the state to a mere channel through which the state duty is realized (indirectly) through the corporation.  This is quite worrisome to those who viewed the SRSG's project to recognize the emergence of robust governance at the private and international level beyond the sometimes chaotic and conflicting vectors of state interests as one of the most important means of developing cultures of human rights sensitive economic activities.  It was clear that many, including strong voices from the business and civil society sector, have begun to argue that the human rights due diligence project, and corporate governance in general, is meant to serve principally as a tool through which state  law and policy may be transposed into the private sector. For business that provides a means of strategically segmenting their "legal" obligations to to continue to play domestic legal orders against each other (and to drive down their collective responsibility thereby). For civil society, it provides a means of "hardening" what is sometimes viewed as an unacceptable soft social norm governance framework back within either the ambit of international law but more likely back into the structures and territories of states (with which they are more comfortable dealing and with respect to which some civil society elements may be dependent).   Thus it has been argued  that transnational corporations increasingly (and with growing acceptance) hide behind state law systems (under the state duty to protect human rights) in order to avoid articulating and applying their autonomous obligations respecting the governance of their subsidiaries and supply chain relations (under the corporate responsibility to respect human rights).  That trend poses great risk to the coherence and integrity of the SRSG's vision memorialized in the GP.   And such a trend would hobble the project of creating robust common cultures of business behaviors that may be harmonized with the customs and practices of economic activities within a globalized economic order that is both public and private, law and norm based. It would be useful, perhaps, for the Working Group to begin to consider means to create greater transparency to identify the ways in which, and the obstacles to, the embrace by business of international standards beyond the limits of the legal obligations  of the states in which they operate. but falling within the corporate responsibility to respect.

The second trend grows out of the first.  Continued balkanization and the emphasis on the state as the center of the GPs might militate in favor of the position that the Ecuadorian government continues to champion--the move toward an adoption of a comprehensive treaty creating an apparatus for specifying (if not remedying) human rights wrongs committed by states and businesses. Such a move back to traditional approaches to the regulation of human activity, but now centered on the creation of formal law based international norms and organizational structures through which they may be realized may be all that can be expected in an institutional universe that continues to protect ancient prerogatives and to insist on operating through the forms of law, even when they might appear less useful. Yet that might signal the ultimate rejection of the vision of the GP, for a custom and organically based polycentric approach to the elaboration, slowly and over time, of a re-constitution of the norms of business and state behavior in relation to human rights (as those evelve as well).  Alternatively, it may drive the now unstoppable development of global norms and standards to which business will adhere, supported by strong privatized structures of consumer and investor engagement more effectively "outside" of the orbit of law based systems, making interactions with these new governance strictures harder and the coherent coordination of evolving business behavior norms.

Still, the position of the delegation from Ecuador  might well be considered for the constitution of an an autonomous and international apparatus for the consideration of complaints by relevant parties based on breaches of the GP--in effect for the creation of an institution for the construction of the GP and its application in specific contexts--an international GP interpretive body.  It need not have binding jurisdiction, like a court, and it need not be constituted along precisely judicial lines.  But the constitution of an institution that might receive complaints and construe the GP as they might apply would serve as a necessary mechanism for the elaboration of the GP.  The creation of a dense web of construction of the GP and its application, would serve to provide an important source of authoritative application of the GP that might serve as a resource for regional human rights organizations, states, businesses and civil society, with respect to a coherent and consist application of the GP.  In the aggregate this might produce a jurisprudentially sound set of glosses through which the GP may be effectively elaborated.    

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