Faculty Productivity and Costs at The University of Texas at Austin: An Economic Salvo in the Culture Wars About the American University as Institution

For those who missed it, there has been an increasing turn toward university assessment as a market actor and participant.  Ideologically predisposed groups--both those suspicious of the "efficiency" of university education and those committed to the status quo--are deploying the techniques of the social sciences to develop "facts" (usually made more rigidly legitimate through the deployment of of numbers and mathematically based equations) which, in the hands of those with policy changing ambitions, can substitute for analysis. Though the discussion is clothed in the language of efficiency and proper deployment of labor, it is less clear whether this language masks other objectives--including shifting the balance of governance sharing between faculty and administration, and disturbing the old consensus about the role of faculty in a research university.

  (From The University of Texas at Austin Home Page)

A recent contribution to the development of facts about the university and its deployment of labor, well worth reading, was distributed through the Center for College Accountability and Productivity.  Richard Veddar, Christopher Matgournis and Jonathan Robe, Faculty Productivity and Costs at The University of Texas at Austin: A Preliminary Analysis (Center for College Accountability and Productivity, May 2011). It focuses on the practices of one of the more conventionally well regarded university institutions in the United States--the University of Texas at Austin. 

The Center for College Accountability and Productivity describes its mission this way:

Founded in 2006, The Center for College Affordability and Productivity (CCAP) is dedicated to researching the rising costs and stagnant efficiency in higher education, with special emphasis on the United States. CCAP seeks to facilitate a broader dialogue on the issues and problems facing the institutions of higher education with the public, policy makers, and the higher education community.

 

 (From Center for College Accountability and Productivity)

The authors are all connected with the CCAP, and one is also connected with the American Enterprise Institute, an organization with its own quite distinct political reputation. 

Richard Vedder is Distinguished Professor of Economics at Ohio University, an Adjunct Scholar at the American Enterprise Institute, Director of the Center for College Affordability and Productivity and author of the book, Going Broke By Degree: Why College Costs Too Much. . . .

Christopher Matgouranis is a Research Assistant at the Center for College Affordability and Productivity and an undergraduate student at Ohio University. . . .

Jonathan Robe is a Research Associate at the Center for College Affordability and Productivity. . . . (From Faculty Productivity and Costs at The University of Texas at Austin: A Preliminary Analysis (supra at 2). 

Professor Vedder has also elaborated on the study in an essay, Richard Veddar, 'Yes, Some Teachers Do Very Little', Minding the Campus: Reforming Our Universities, July 28, 2011. 

What has people buzzing is the conclusion:

Recently released preliminary data from the University of Texas strongly suggest that the state of Texas could move towards making college more affordable by moderately increasing faculty emphasis on teaching. Looking only at the UT Austin campus, if the 80 percent of the faculty with the lowest teaching loads were to teach just half as much as the 20 percent with the highest loads, and if the savings were dedicated to tuition reduction, tuition could be cut by more than half (or, alternatively, state appropriations could be reduced even more—by as much as 75 percent). Moreover, other data suggest a strategy of reemphasizing the importance of the undergraduate teaching function can be done without importantly reducing outside research funding or productivity. (From Faculty Productivity and Costs at The University of Texas at Austin: A Preliminary Analysis (supra at 3).

Faculty Productivity and Costs at The University of Texas at Austin: A Preliminary Analysis is rich, and I leave it to others to defend or critique the work.  I note only a few thoughts about the implications of some of the assumptions on the basis of which some of the analysis appears to be undertaken: 

The most significant of these assumptions, a direct correlation between productivity in research and success in securing third party research funding, produces a substantial effect on the construction of data and the formulation of conclusions based on this data.  Professor Vedder does modify the strength of the relationship and suggests the effects of this assumption on the results in Faculty Productivity and Costs at The University of Texas at Austin: A Preliminary Analysis.  He tells us in this later essay: "Professors in the humanities and social sciences and other disciplines outside the hard sciences have a more difficult time garnering research support. " (From 'Yes, Some Teachers Do Very Little', supra). But he does not question the basic assumption of the identity between research productivity and the quantum of third party funding. It is quite true that for some disciplines there has grown a sense of strong connection between external funding and productivity.  Yet there are others without a history or tradition of conflating external funding with research production or productivity.  This is something substantially more than the suggestion that external funding is harder to get--it is the suggestion that in some disciplines the connection between funding and productivity in research is weak or irrelevant.  As such, as a measure of productivity across disciplines the measure is unhelpful as a fact generator.  It might, however, be helpful as a generator of policy pressure to change the focus of productivity assessment in disciplines that have failed to conform to this assumption.  This sense of an underlying substantive agenda might be strengthened when one considers the possibility that there are other measures of productivity that do not abandon a focus on quantification: for example number of papers produced, reputation value of placement of papers, book production, invitations to deliver papers outside the institution, etc.  And all of this before one considers issues of quality, a subject not treated in  Faculty Productivity and Costs at The University of Texas at Austin: A Preliminary Analysis. . On the other hand, it is true that there are fields of study, important ones, in which the "culturally natural" focus on research productivity is indeed quantity of external funding.  Yet to universalize the cultural habits of one field  produces of effects-- from indirectly changing the work patterns and values assessment matrices of a field, to affecting the focus and development of research agendas to suit clients (external funding groups).  One wonders if, were those funding sources to originate elsewhere--say Iran or China, or politically motivated groups of other sorts--whether there might be some considerations of the substantive effects of choice of assessment measure. As such, the universalizing of this measure can have a potent instrumental effect--a form of indirect governance through the techniques of monitoring and reporting.  See, Larry Catá Backer, Global Panopticism: States, Corporations and the Governance Effects of Monitoring Regimes. Indiana Journal of Global Legal Studies, Vol. 15, 2007. 

Moreover, the leveling effect of the choice of research productivity assessment tends to privilege the relationship between outside funding agency and faculty member in ways that might affect the relationship of the university as an institution and its stakeholders.  The result, as is clearly visible to those in the business of institutional academic governance is the proliferation of management in this area.  In particular, the costs of defining classes of acceptable funding sources, monitoring compliance with funding rules, and the costs of outside processes and monitoring costs among funding and governmental agencies increases as the focus of research becomes universally dependent on economic transactions between researcher and funding agency.  As such, it might be necessary to include  added costs of administration of these grants now ought to be added in (or subtracted from productivity because administrative expenses can be a drag on profitability) These administrative burdens are not merely internal to the university but also shared with government and outside funding agencies.  And, as hinted at above, the reconstruction of some academic fields to a focus on third party sourcing as a measure of productivity will necessarily have an effect on research agendas--effectively shifting control over the nature and direction of research from the researcher to the third party finders. The choice of the measure, then, lends itself to critique in several respects.   And the question is not merely quantitative--as a matter of increasing efficiency--but also a matter of substantive control over cultures of research and the control over the direction and character of this function. 

   (From The University of Texas at Austin Home Page)

These thoughts are not offered as critique but as a caution.  The sort of empirical research at the heart of Faculty Productivity and Costs at The University of Texas at Austin: A Preliminary Analysis can produce important insights in the direct relationships between facts.  And it can suggest the value and character of particular facts and relationships.  But such research can easily be reduced to sloganeering, especially in the hands of those who would use these sorts of studies instrumentally. Given the assumptions under which he developed his methodology, Faculty Productivity and Costs at The University of Texas at Austin: A Preliminary Analysis provides a set of quantifiable relationships that can be understood as facts, even relational facts.  But the production of facts ought not to substitute for analysis.  Facts do not have the sort of singular character that makes the exercise of analysis, and the discussion of values, irrelevant.  The instrumental use of facts, like the instrumental construction of a mechanics for the development of facts, is an exercise that is quite distinct from the "facts" themselves.  It is to that discussion that Professor Vedder and his co-authors have contributed.  It is not yet clear that the consequential analysis cuts only in one direction.  But it is clear that the status quo of faculty university relations, and the consensus of appropriate levels of activity are likely both to be challenged and modified. Whether this change will affect quality as well as productivity, and the direction of the vectors of change will unlikely to be determined in time to affect the individuals and groups who will advocate for change, and that disjunction between accountability and consequence makes change advocacy all the more tempting.  It is to that contest that important stakeholders will now direct their attention--applying political, cultural, economic and other policy presumptions into which they will conscript the "facts" extracted from the behaviors and work cultures at the University of Texas at Austin.   

 

An Analysis of the UN Protect, Respect and Remedy Framework Guiding Principles Part III: Justification and Legitimacy in the Introduction to the Guiding Principles

On March 24, 2011 the United Nations released the "Guiding Principles for the Implementation of the UN Protect, Respect and Remedy Framework" (the "GP" or "Guiding Principles"), by UN Special Representative on business &; human rights, John Ruggie. The Guiding Principles were endorsed by the U.N. Human Rights Council in June, 2011. “In an unprecedented step, the United Nations Human Rights Council has endorsed a new set of Guiding Principles for Business and Human Rights designed to provide -for the first time- a global standard for preventing and addressing the risk of adverse impacts on human rights linked to business activity.” United Nations Human Rights Council, News Release, New Guiding Principles on Business and human rights endorsed by the UN Human Rights Council, 16 June 2011.

(From CIDSE, May 2011).

The consideration of the Guiding Principles marks a great milestone in the development of frameworks of governance of economic actors outside of the framework of national law. This milestone can be understood as consisting of four great aspects. The Guiding Principles represents the first successful efforts to provide a governance framework that can be adopted into the national legal orders of adhering states. In this aspect it represents a critical effort in the harmonization of national law on the basis of global consensus. At the same time, the Guiding Principles also represents the first successful effort to provide a framework for the development of customary and conventional international law. In this aspect, the Guiding principles represent a critical effort in the harmonization of governance for an important transnational actor at the international level. Additionally, the Guiding Principles for the first time acknowledges the existence and importance of non-governmental sources of governance rules. The embrace of the importance of social norm systems of autonomous behavior rules for economic enterprises represents a critical acknowledgment of non-state actors as a source of norm making the authority of which is not dependent on states. Lastly, the Guidelines for the first time link remedial obligations to the state duty to remedy and the corporate responsibility to respect human rights in a way that both preserves the autonomy of human rights and their connection to both law and social norms systems.

The Guiding Principles will likely be significantly influential not just as a source of soft law principles at the international level, but as a basis for the evolution of common understanding of appropriate standards of corporate behavior for the development of social norms and eventually changes to the form of the domestic legal orders of states. It will be inevitable that as the Guidelines move toward approval and implementation after endorsement, all major stakeholders in the process will seek to mold the Guidelines to suit their interests. See, e.g., Stefan Marculewicz, U.N. Special Representative's Final Guiding Principles on Business and Human Rights: Policy Implications for Employers, Global Employment Law, March 29, 2011 ("We also believe these Guiding Principles, if not addressed proactively by companies, may create an opportunity for advocacy organizations (such as issue-specific non-governmental organizations and labor unions) to seek to define the parameters of the Guiding Principles on their own terms. "). These discussions will draw on the Guiding Principles themselves and their inevitable comparison with failed earlier efforts to provide a structure for the governance of business actions with human rights impacts. John Knox, The Human Rights Council Endorses “Guiding Principles” for Corporations ASIL Insights Aug. 1, 2011 ("In the wake of the debate over the Draft Norms, the appointment of John Ruggie was something of a gamble that he could bring consensus out of the controversy over the application of human rights principles to corporations. To a remarkable degree, he did so. The Human Rights Council’s endorsement of the Guiding Principles opens a new chapter in the continuing effort to bring human rights law to bear on corporations. It remains to be seen, however, how successful the Guiding Principles will eventually prove at curbing corporate abuses of human rights.").

In order to better understand the Guidelines, it may be useful to examine the context in which the Guiding Principles were developed and the development of the Guiding Principles from draft (in November 2010, the "DP" or "Draft Principles") to final form GP (March 2011) from a more neutral perspective. For this purpose I have provided my own thoughts about that context and development that I will develop in a series of posting, divided along the conceptual lines within which the Guiding Principles were framed.

That analysis is divided into several parts:

Part I: From Conception to Principle—The development of the Protect-Respect-Remedy Framework and the Drafting of the Guiding Principles (April 24, 2011);

Part II. The Draft Guiding Principles: Section by Section Analysis (April 30, 2011);

Part III. Justification and Legitimacy in the Introduction to the Guiding Principles Implementing the UN "Protect, Respect and Remedy" Framework.

Part IV. Section By Section Analysis, From Draft to Final Principles: Overall Structure and Capstone Principles.

Part V. Section By Section Analysis: The State Duty to Protect Principles.

Part VI. Section By Section Analysis: The Corporate Responsibility to Respect.

Part VII. Section By Section Analysis: The Obligation to Remedy.

Part VIII. The General Principles: A Preliminary Assessment.

 (From TwentyFifty)

The Principles Revealed:  Justification and Legitimacy in the Introduction to the Guiding Principles Implementing the UN "Protect, Respect and Remedy" Framework.

This posting continues a consideration of the final version of the Guiding Principles, focusing on the framing elements of the GP, its justification and general presumptions.

The full analysis will be published as 

Backer, Larry Catá, 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 and can be accessed here.

_________________________________

  The System Unveiled:  The Introduction to the Draft and Final Versions of the Guiding Principles

The Guiding Principles were unrevealed in two stages, separated by about half a year.  The draft version of the Guiding Principles (“DG”) was circulated in November 2010.  It was introduced by the final report of the SRSG, summarizing the SRSG’s work from 2005 to 2011, and presenting Guiding Principles for consideration by the Human Rights Council. The SRSG circulated the final version of the Guiding Principles (“GP”) in March 2011. The Guiding Principles represent a new approach to the framing of governance for multinational corporations within a complex system that, though grounded in the rules of the domestic legal orders of states, seeks to go beyond that to international and private governance regimes. True to the SRSG’s intention to construct a framework grounded in principled pragmatism,[1] the Guiding Principles appear to be developed to strike balances among the multiple competing ideologies, governance approaches and stakeholders that have made the process from Norms, to “Protect, Respect and Remedy” framework, and ultimately to the Guiding Principles so complex.  That balance, posits a framework of inter-systemic harmonization[2] of a governance regime to which three autonomous but deeply related systems contribute—the law-state system, the international system and the social-norm system.  That framework of inter-systemic harmonization is then itself implemented through an integrated but functionally divided system of dispute resolution that both reflects the autonomy of the governance systems that make up the regime, and the need for harmonization and connection of method.    As such, it ground breaking for reasons much greater than its utility in clarifying the private sector’s responsibility for human rights.[3]  The complexity of the movement to DG requires a close reading not merely of the Guiding Principles themselves, but also of the introductory statements through which the SRSG thought to set the stage for the understanding of and to provide an interpretive basis for the principles that follow. A close analysis of these introductory statements, as both theory and praxis, reveals both the nature and complexity of the breakthrough that the Guidelines represent and set the stage for the detailed analysis of the Guiding Principles themselves that following Section IV.

A.  The 2011 Report:  The Maturation of Principled Pragmatism.

The Draft Guiding Principles are introduced by a short Report (the “2011 Report”)[4] that is meant to set the stage for the principles and commentary that follow.  It represents the distillation of the SRSG’s project, the evolution of which was chronicled in detail in the Reports from 2006 through 2010.[5]  It also suggests the theoretical-policy foundations of the principles that follow, and its implementation.  This section examines that Report and suggests the way in which it provides an important window on the DG, their character and limitations. 

The focus of the Report is business—not a particular form that business can take, corporation, partnership, conglomerate, joint venture, value or supply chain, or the like—but business understood as a complex nexus of economics, law and politics.[6]  That nexus is posited as having been at some sort of reasonable equilibrium state in which the roles of the state and of non-state actors were aligned.  But the last several decades have “witnessed growing institutional misalignments, from local levels to the global, between the scope and impact of economic forces and actors, and the capacity of societies to manage their adverse consequences.”[7]  At the heart of this misalignment is the corporation, which has itself evolved to embody “complex forms that challenge conventional understanding and policy designs.”[8]  These changes have affected all regions and states; they have effectively shattered the old status quo.[9]  Change is not merely expedient; change is necessary to restore the alignment between the economic, policy, political and social forces represented by business and those represented by the state.

This opening paragraph nicely sets the stage for the elaboration of both the theory and praxis that is to follow. Its purpose is specific—to focus on the problem of the governance of private aggregations of economic power.  The logic of this construct is straightforward.  Economic, political and communal spheres operate best when they exist in a stable system in which each contributes to the social fabric and each is bound by a set of obligations that ensure the stability of the system and the likelihood that it will work towards maximizing the ability of this construct to contribute to the welfare of people and the stability of the state.  But the logic of globalization[10] has changed the traditional alignment of these three communities.  Though the SRSG focuses on the misalignment caused by the evolution of corporate power, misalignment also has roots in the evolution of state and communal power.   For example, regimes of free movements of capital, goods and services has substantially altered the relationship between states and corporations, but has also changed the relationship of states with their populations and with other states as well.  The burgeoning network of agreements among states has substantially altered the relationship between states and greatly augmented the institutional character and regulatory power of the community of states through increasingly effective international organizations both public and private in character.  The decentralization of power has substantially increased the number and character of stakeholders in global society.[11]   

  But the SRSG does not mean to set the world right.  His object is more modest in scope, though not in aim. The sort of “epochal changes”[12] suggested by the description of changes in the global order is well represented in microcosm in the transformation of the framework governance regimes for business sand human rights.[13]  The microcosm of business and human rights, as exemplary of the misalignments in governance regimes, proved irresistible—a contained space within which new approaches could be developed and implemented, “to map the challenges and recommend effective means to address them.”[14]

But something as simple in theory as human rights,[15] proved more difficult in practice where the aim was to “shift from institutional misalignments onto a socially sustainable path.”[16]  The SRSG thus moves from the description of the problem—misalignment—to the consequences of its resolution, requiring “operational and cultural changes in and among governments as well as business enterprises—to create more effective combinations of existing competencies as well as devising new ones.”[17]  And thus the SRSG moves from the singular focus on business, where he started the report, to the implication of that focus—the need for governments as well as business to change their behavior.

In recognizing the need to implement socially sustainable governance, the SRSG also acknowledges that the international community must play a key role.[18] But business and human rights is acknowledged as new a policy domain as the international community is at the early stages of the journey to sustainable governance.[19]   Business and human involves all rights that enterprises can affect,[20] includes all rights holders,[21] and can invoke a broader range of regulatory tools than traditional state or international institutional actors.[22]

International institutional involvement is necessary because the traditional balance between business and state actors cannot be broad back into balance without its intervention.  Moreover, because multiple regulatory systems are involved, the scope of the problem of business and human rights is considerable broader than the problems usually subject to the regulatory frameworks of the law-state.  Globalization has produced something of a parity of power between companies and some states.[23]  The result is that the issue of business and human rights is bound up with the issue of states and human rights—companies may be complicit in the law system based human rights violations of states, and states may be involved in the human rights violations of companies.[24]  Two distinct governance areas are thus intimately connected, yet each is also subject to governance regimes that, though they may overlap, are not the same.[25]  And both law-state and corporate social-norm systems are intertwined with networks of regulation at the international level.  Moreover, the human rights obligations of states, corporations and international organizations are bound up in larger webs of legal and social norm constraints.[26]

For the SRSG, then, the problem of misalignment is the expression of a macro issue that is supported, in some measure by the underling structural incapacities of states.  “State practices exhibit substantial legal and policy incoherence and gaps.”[27]  Policy incoherence is the outward expression of institutional incapacity in the face of changing circumstances.[28]   At the international level, incoherence is evidenced by the disordered state of territorial limits of state action. [29]  Extraterritoriality is at once valued both for its ordering effect on behavior across borders, and encouraged as a means of controlling the activity of business.[30] But it is also reviled as a means of projecting power from dominating to subordinated states.[31] The SRSG suggests a very narrow form of extraterritoriality—the power of the home state to assert regulatory authority over its citizens or the entities it has chartered.[32]  The SRSG avoids the more aggressive versions of extraterritoriality and suggests as an alternative, and better model, the substitution of inter-state consensus standards for projections of state power abroad.  And indeed, one can understand both the need for extraterritoriality as a tool and its solution, as powerful evidence of the consequences of misalignment and the way it produces incentives to extend the subordination of smaller states by larger ones in the form of extraterritoriality.   Misalignment is also the expression of a macro issue that is supported, in some measure by the underling structural incapacities of companies.[33]   Misalignment and incoherence thus involves not merely adjustments between public and private governance, but also among states and within the legal ordering of the community of states. 

Having identified the scope and character of the problem, the SRSG theorizes a solution and posits a suggested approach to implementation. 

One major reason that past public and private approaches have fallen short of the mark has been the lack of an authoritative focal point around which the expectations and actions of relevant stakeholders could converge. Therefore, when the Special Representative was asked to submit recommendations to the Human Rights Council in 2008 he made only one: that the Council endorse the ‘Protect, Respect and Remedy’ Framework he had proposed, following three years of extensive research and inclusive consultations on every continent.[34]

The Protect-Respect and Remedy Framework is then described.[35]  The relationship of the Protect-Respect and Remedy Framework with the problem of misalignment and the context of multiple autonomous governance regimes is examined.[36]  Its utility is also suggested by the breadth of its influence,[37] even before it has been operationalized.[38]

If the Protect, Respect and Remedy Framework provides the theoretical “authoritative focal point around which the expectations and actions of relevant stakeholders could converge”[39] then the GP provides the operational focal point for the project.  “The Guiding Principles that follow constitute the next step, providing the “concrete and practical recommendations” for the Framework’s implementation requested by the Council.”[40]  The nature of the CP’s contribution to the resolution of the problem that gave rise to the SRSG’s project is complex and subtle.  The GP contributes to the “operational and cultural changes in and among governments as well as business enterprises—to create more effective combinations of existing competencies as well as devising new ones”[41] not by changing contemporary legal and social norm structures but by providing a new organization for them.   That organization is grounded in elaboration of existing practices and standards, their integration  within a single framework, and the identification of areas that require further development.[42]  But at the same time, the operationalization proposed (in the form of the GP) is not meant to be what the SRSG describes as a mere “toolkit, simply to be taken off the shelf and plugged in.”[43]   

And so the 2011 Report ends where it started—mindful of the difficulties of theorizing and implementing a single coherent and comprehensive framework that “will reflect the fact that we live in a world of 192 United Nations Member States, 80,000 transnational enterprises, ten times as many subsidiaries and countless millions of national firms, most of which are small and medium-sized enterprises.”[44]  The DP reflects these points of convergence, autonomy, polycentricity, and flexibility both within the governance frameworks of each of the components of the system articulated, and within the proposed framework itself.  

In the next section we turn to an examination of the final version of the Guiding Principles themselves.  First considered is the elaboration of the framework within which the Guiding Principles were meant to be read.  The section then turns a section by section analysis of the GP; critical to this analysis is a consideration of both the GP themselves, and the changes the occurred from draft to final GP.  Lastly, these analytical threads are woven together to consider the extent to which the GP help “to secure the development of universally applicable and yet practical Guiding Principles in order to achieve the more effective prevention of and remedy for corporate-related human rights harm.”[45]

B.  The Principles Unveiled in Final Form:  “Introduction to the Guiding Principles.”

While the 2011 Report was written to serve both descriptive and advocacy objectives, the Introduction to the final form of the Guiding Principles was The Introduction to the Guiding Principles,[46] serves an almost purely framing objective.  Divided into 16 paragraphs, it succinctly summarizes the framework and framing presumptions of the Guiding Principles.  As such, it provides the most well developed synthesis and exposition of the business and human rights project begun by the Special Representative in 2005.  The first three paragraphs of the Introduction set the stage, suggesting the historical inevitability of the Guiding Principles.  Paragraph 1 suggests the inevitability of the project, arising from a fundamental evolution of global society within which the “issue of business and human rights became permanently implanted on the global policy agenda in the 1990s, reflecting the dramatic worldwide expansion of the private sector at the time, coupled with a corresponding rise in transnational economic activity.”.[47] Paragraphs 2-3 are particularly important for distinguishing the Guiding Principles project from more aggressive earlier efforts,[48] and to confine them to a governance space that would not threaten any of the principal stakeholders, particularly states.[49]  This is important for setting the political context in which the Guiding Principles are framed—that they do not extend law or impose additional obligations on states or recognize a new status for non-state actors.  The Special Representative stresses this point.[50]  The Introduction itself is then presented as the final product of the alternative process initiated on the failure of the approach represented by the Norms. [51]

The next set of paragraphs then recount the process from concept to principle.  Paragraphs four and five provide a distilled summary of the first two phase of the process that produced,[52] and by the method of its production, legitimated, the “Protect, Respect and Remedy” framework on which the GP are based.[53]  Paragraph four is also important for its suggestion of the necessity of institutionalization of the Guiding Principles project—the informational (and legitimating) basis of the project is founded on knowledge of existing standards and practices “that has continued to this day.”[54]  The fruits of the second phase of the Project—“ that the Council support the “Protect, Respect and Remedy” Framework [the Special Representative] had developed following three years of research and consultations”[55]—was described in Paragraph six.  Paragraph six sketches the three pillar framework in broad strokes.  It provides a very generalized sense of the fundamental characteristic of the three pillar framework—grounded in two distinct but interlinked sources of obligation that are tied by the joint obligation to remedy breaches of obligation.[56]  

Paragraph seven returns to the issue of legitimization.  It describes the breadth of formal acceptance of the framework by critical stakeholders in the public, non-governmental, and business sectors. It suggests functional acceptance by international organizations that have drawn on the “Protect, Respect and Remedy” framework “in developing their own initiatives in the business and human rights domain.”[57]  Paragraph eight expands on the legitimation theme by cataloguing the “large number and inclusive character of stakeholder consultations convened by and for the mandate [that] no doubt have contributed to its widespread positive reception.”[58]  The object, of course, is to emphasize both substantive legitimacy—grounded in facts—and process legitimacy, derived from the adherence to generally accepted methods of stakeholder consultation as a substitute for the conventional processes of democratic governance in states.[59]  Stake holding legitimates action the way mass popular movements legitimate changes in government sometimes, in their active and representative capacities, who come “to constitute a global movement of sorts in support of a successful mandate.”[60]

This legitimating acceptance led to phase three of the project—operationalizing the three pillar framework, “to provide concrete and practical recommendations for its implementation.”[61]  Those concrete and practical recommendations were to take the form of guiding principles.[62] These Guiding Principles were reinforced by (and reinforced) the approach taken to produce the “Protect, Respect and Remedy” framework upon which the GP are based.[63]  As such, the Guiding Principles are grounded in the same sort of principled pragmatism that marked the development of the three-pillar framework, including the “road testing” of particular guidelines,[64] extensive consultations on the wording of the text,[65]  “In short, the Guiding Principles aim not only to provide guidance that is practical, but also guidance informed by actual practice.”[66]

And what result? The Special Representative suggested the principal objective of these efforts—to establish “a common global platform for action, on which cumulative progress can be built, step-by-step, without foreclosing any other promising longer-term developments.”[67]  The Introduction ends with a description of the Guiding Principles defining its scope and purpose by what the GP are not, focusing on two characteristics in particular.  The first has already been mentioned—the GP are not a normatively positive project; its object is merely to integrate, to repackage, the cluster of legal and social norms that already bind states and corporations (at least as these touch on issues of human rights,   “within a single, logically coherent and comprehensive template; and identifying where the current regime falls short and how it should be improved.”[68]  Second, the fact that the GP do not mean to create new legal obligations does not mean that it is no more tan a more efficient codex; “the Guiding Principles are not intended as a tool kit, simply to be taken off the shelf and plugged in.”[69]  There is a certain amount of art involved in the application of the GP, precisely because it involves the interactions of legal and social norms, of states and corporations, of national and international norms, and of rights and remedies within and beyond the law of states.[70]  Neither normative system nor mere toolbox, then, the Guiding Principles are offered as a “universally applicable and yet practical. . . . [doctrines] on the effective prevention of, and remedy for, business related human rights harm.”[71]  Whether, and to what extent, the GP live up to their billing is the subject considered next.   What emerges, in the form of the General Principles, are the beginnings of an articulation of the concepts first developed in the Special Representatives Reports from 2006 through 2011.  These beginnings fall far short of the promise of the framework as conceptualized, but as accepted by the state actors who populate the U.N. institutional edifice, the GP are a remarkable movement toward the conceptual framework developed by the Special Representative and articulated in the “Protect, Respect and Remedy” framework.   A section by review of the GP, as it moved from draft to final version, reveals both the extent of the retreat from the broadest readings of the “Protect, Respect, and Remedy” framework, and the extent that the advances of that framework are still preserved in the final document.      

---

[1]See discussion supra Part II, 2006 Report.

[2] On inter-systemic harmonization, see, Larry Catá Backer Inter-Systemic Harmonization and Its Challenges for the Legal-State, in FICHL Publication Series No. 11 (2011): The Law of the Future and the Future of the Law 427-437 (Editors: Sam Muller, Stavros Zouridis, Morly Frishman and Laura Kistemaker; Torkel Opsahl Academic EPublisher, Oslo, forthcoming 2011).

[3] Norway, Ministry of Foreign Affairs, Report No. 10 (2008-2009) to the Storting: Corporate Social Responsibility in a Global Economy, Para. 7.1.1.

[4] Report of the Special Representative of the Secretary General on the Issue of Human Rights and Transnational Corporations and other Business Enterprises, John Ruggie, Guiding Principles for the Implementation of the United Nation’s ‘Protect, Respect and Remedy’ Framework, DRAFT, Nov., 2010.

[5] See discussion infra at ---.  For a more detailed examination, see, Larry Catá Backer, 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.

[6] “Business is the major source of investment and job creation, and markets can be highly efficient means for allocating scarce resources, capable of generating economic growth, reducing poverty, and increasing demand for the rule of law, thereby contributing to the realization of a broad spectrum of human rights. ” 2011 Report at ¶ 1.

[7]  Id.

[8]  Id.  The state, of course, also had evolved in as extraordinary a way, becoming less stridently autonomous and more enmeshed in a growing web of supra national relationships and international consensus norms (both embodied in international hard and soft law) that have challenged the conventional notion of the state, sovereignty, democratic accountability and law.  See, e.g., R.J. Barry Jones, Globalisation and Interdependence in the International Political Economy:  Rhetoric and Reality (London: Pintor, 1995); Oscar Schachter, The Decline of the Nation-State and Its Implications for International Law, 36 Colum. J. Transnat’l L. 7 (1998); José E. Alvarez, Why Nations Behave, 19 Mich. J. Int’l L. 303 (1997-98); Anne Marie Slaughter, Governing the Global Economy Through Government Networks, in  The Global Transformations Reader:  An Introduction to the Globalization Debate 189 (David Held & Anthony McGrew, Oxford: Polity Press,  2^nd ed., 2000). 

[9] 2011 Report at ¶ 1.

[10] On globalization, see, e.g., Manfred B. Steger, Glabalism:  The New Market Ideology (New York:  Rowman & Littlefield, 2002); the classic rendering is Thomas L. Friedman, The Lexis and the Olive Tree:  Understanding Globalization (Harpswell, ME: Anchor 2000); and the classic critique is Joseph E. Stiglitz, Globalization and Its Discontents (New York: W.W. Norton 2003).

[11] “We are beginning to abandon the hierarchies that worked well in the centralized, industrial era.  In their place, we are substituting the network model of organization and communication, which has its roots in the natural, egalitarian, and spontaneous  formation of groups among like minded people.”  John Naisbitt, Megatrends 281 (New York:  Warner Books, 1984).

[12] 2011 Report at ¶ 1.

[13] 2011 Report at ¶ 2.  The SRSG explains

Institutional misalignments create the permissive environment within which blameworthy acts by business enterprises may occur, inadvertently or intentionally, without adequate sanctioning or reparation. The worst corporate-related human rights abuses, including acts that amount to international crimes, take place in areas affected by conflict, or where governments otherwise lack the capacity or will to govern in the public interest. But companies can impact adversely just about all internationally recognized human rights, and in virtually all types of operational contexts.

Id.

[14] 2011 Report at ¶ 2. 

[15] “The idea of human rights is as simple as it is powerful: treating people with dignity.” 2011 Report at ¶ 3.

[16] Id.

[17] Id.

[18] 2011 Report at ¶ 4.

[19] Id.

[20] Id. It is thus distinguished from traditional human rights agendas at the international organization level, where organizes its regulatory agendas around a fixed set of particular rights.

[21] Id. It is thus distinguished from states that can recognize the rights of particular groups.

[22] Id.  It is thus distinguished from regulatory regimes that focus solely on state-based human rights violations that are restricted to the methodologies of the law-state; it can invoke the regulatory methods of private actors as well.

[23] 2011 Report at ¶ 5.

[24] The interrelationship has been made explicit in the ethics based determinations of the Ethics Council of the Norwegian Sovereign Wealth Fund. See, e.g., Larry Catá Backer, Developing a Coherent Transnational Jurisprudence of Ethical Investing: The Norwegian Sovereign Wealth Fund Ethics Council Model Part I

Law at the End of the Day, Feb. 1-28, 2011, available http://lcbackerblog.blogspot.com/2011/02/this-blog-essay-site-devotes-every.html.

[25] The 2011 Report explains:

States are under competing pressures when it comes to business, not only because of corporate influence but also because so many other legitimate policy demands come into play, including the need for investment, jobs, as well as access to markets, technology and skills. In addition, in the area of business and human rights States are simultaneously subject to several other bodies of international law, such as investment law and trade law. . . .  At the same time, business conduct is shaped directly by laws, policies and sources of influence other than human rights law: for example, corporate law, securities regulation, forms of public support such as export credit and investment insurance, pressure from investors, and broader social action.

Id., ¶ 5.

[26] 2011 Report at ¶ 5.

[27] 2011 Report at ¶ 6.

[28] “The most prevalent cause of legal and policy incoherence is that the units of Governments that directly shape business practices—in such areas as corporate law and securities regulation, investment promotion and protection, and commercial policy—typically operate in isolation from, are uninformed by, and at times undermine the effectiveness of their Government’s own human rights obligations and agencies.” 2011 Report at ¶ 6.

[29] 2011 Report, ¶ 7.  “This is in contrast to the approaches adopted in other areas related to business, such as anti-corruption, money-laundering, some environmental regimes, and child sex tourism, many of which are today the subject of multilateral agreements.”  Id.

[30] “This enables a “home” State to avoid being associated with possible overseas corporate abuse. It can also provide much-needed support to “host” States that may lack the capacity to implement fully effective regulatory regimes on their own.”  2011 Report at ¶ 8.

[31] For a discussion on extraterritoriality and neo-colonialism, see, e.g., Kal Raustiala, Does the Constitution Follow the Flag?: The Evolution of Territoriality in American Law 6 (2009); Richard Falk, Predatory Globalization:  A Critique 35-47 (Oxford: Polity Press, 1999)..

[32] Thus, for example, John Knox suggests “The first sentence in Paragraph 7 takes a stronger stand against the application of such obligations to corporate conduct than I think is clearly warranted.  Moreover, it’s a position that is likely to draw fire from critics pointing to the absence of jurisdictional limits in the International Covenant on Economic, Social and Cultural Rights, for example, and the ESC Committee’s strong statements about extraterritoriality.”  Special Representative of the United Nations Secretary-General for business & human rights, Draft Guiding Principles (GPs) for implementation of the U.N. "Protect, Respect and Remedy" Framework Online Consultation(Comments of John Know, Jan. 17, 2011), available http://www.srsgconsultation.org/index.php/main/discussion?discussion_id=19).

[33] “Business consultancies and corporate law firms are establishing practices to advise clients on the requirements not only of their legal, but also their social, license to operate, which may be as significant to an enterprise’s success. However, these developments have not acquired sufficient scale to reach a tipping point of truly shifting markets.” 2011 Report at ¶ 9.

[34] 2011 Report, ¶10.

[35] Id., ¶11.  See also discussion, supra, at text and notes -----.

[36] The SRSG explained:

Each pillar is an essential component in supporting what is intended to be a dynamic system of preventative and remedial measures: the State duty to protect because it lies at the very core of the international human rights regime; an independent corporate responsibility to respect because it is the basic expectation society has of business in relation to human rights; and access to remedy because even the most concerted efforts cannot prevent all abuse.

Id.

[37] The Framework has “become a common foundation on which thinking and action by stakeholders can build over time. Thus, the Framework has already influenced policy development by Governments and international institutions, business policies and practices, as well as the analytical and advocacy work of trade unions and civil society organizations.”  2011 Report, ¶ 12.

[38] “In resolution 8/7 (June 2008), the Council was unanimous in welcoming this policy Framework, and in extending the Special Representative’s mandate to 2011 in order for him to “operationalize” and “promote” it.”  Id.

[39] 2011 Report, ¶ 10.

[40] 2011 Report, ¶ 12.

[41] Id.

[42] In the words of the SRSG:

The Guiding Principles’ normative contribution lies not in the creation of new international law obligations but in elaborating the implications of existing standards and practices for States and businesses; integrating them within a single, coherent and comprehensive template; and identifying where the current regime falls short and how it should be improved.

Id., ¶ 13.

[43] 2011 Report, ¶ 14.

[44] Id.

[45] 2011 Report, ¶ 15.

[46] Introduction ot the Guiding Principles, in John Ruggie, Report of the Special Representative of the Secretary General on the Issue of Human Rights and Transnational Corporations and Other Business Enterprises, John Ruggie, Guiding Principles on Business and Human Rights: Implementing the United Nations “Protect, Respect, and Remedy” Framework, Human Rights Council, 17th Session, Agenda Item 3, A/HRC/17/31, 21 March 2011, available http://www.business-humanrights.org/SpecialRepPortal/Home/Protect-Respect-Remedy-Framework/GuidingPrinciples.

[47] Introduction to the Guiding Principles, supra, note --, at 3 ( ¶ 1).

[48] “One early United Nations-based initiative was called the Norms on Transnational Corporations and Other Business Enterprises. . . .  Essentially, this sought to impose on companies, directly under international law, the same range of human rights duties that States have accepted for themselves under treaties they have ratified.”  Introduction to the Guiding Principles, supra, note --, at 3 ( ¶ 2).

[49] “This proposal triggered a deeply divisive debate between the business community and human rights advocacy groups while evoking little support from Governments.”  Id., at 3 ( ¶ 3).

[50]  “The Guiding Principles’ normative contribution lies not in the creation of new international law obligations but in elaborating the implications of existing standards and practices for States and businesses; integrating them within a single, logically coherent and comprehensive template; and identifying where the current regime falls short and how it should be improved.” Id., at 5 ( ¶ 14).

[51] “This is the final report of the Special Representative.”  Id.

[52] The Special Representative outlined the three phases of work that led to the framework and the GP.  The first was an “identify and clarify” phase that was meant to distinguish the Special Representative’s project from that which animated the Norms, and to reframe the project.  The second phase is described in Paragraph 5—acceptance of the Human Rights Council’s 2007 invitation to submit recommendations on the basis of the first phase standards and practices review.  Id.,  at 3 ( ¶ 5).

[53] “It has provided a broader and more solid factual basis for the ongoing business and human rights discourse, and is reflected in the Guiding Principles annexed to this report.” Id., at 3 ( ¶ 4). 

[54] Id., at 3 ( ¶ 4).  The information universe critical to the Guiding Principles enterprise includes: “mapping patterns of alleged human rights abuses by business enterprises; evolving standards of international human rights law and international criminal law; emerging practices by States and companies; commentaries of United Nations treaty bodies on State obligations concerning business-related human rights abuses; the impact of investment agreements and corporate law and securities regulation on both States’ and enterprises’ human rights policies; and related subjects.”  Id.

[55] Id., at 3 ( ¶ 5).  “The Council did so, unanimously “welcoming” the Framework in its resolution 8/7 and providing, thereby, the authoritative focal point that had been missing.”  Id.

[56] The Special Representative put it this way:

Each pillar is an essential component in an inter-related and dynamic system of preventative and remedial measures: the State duty to protect because it lies at the very core of the international human rights regime; the corporate responsibility to respect because it is the basic expectation society has of business in relation to human rights; and access to remedy because even the most concerted efforts cannot prevent all abuse.”

Id., at 3 ( ¶ 5). 

[57] Id., at 4 ( ¶ 7). 

[58] Id., at 3 ( ¶ 8). 

[59] See, e.g., Bradley, Caroline M., Consultation and Legitimacy in Transnational Standard-Setting (April 22, 2011). Minnesota Journal of International Law, Vol. 20, No. 2, 2011; University of Miami Legal Studies Research Paper No. 2011-23. Available at SSRN: http://ssrn.com/abstract=1885045.

[60] Introduction to the Guiding Principles, supra, note --,  at 5 ( ¶ 16). 

[61] Id.,  at 3 ( ¶ 9). 

[62] “During the interactive dialogue at the Council’s June 2010 session, delegations agreed that the recommendations should take the form of “Guiding Principles”; these are annexed to this report.” Id. 

[63] “Thus, the Guiding Principles are informed by extensive discussions with all stakeholder groups, including Governments, business enterprises and associations, individuals and communities directly affected by the activities of enterprises in various parts of the world, civil society, and experts in the many areas of law and policy that the Guiding Principles touch upon.” Id., at 4 ( ¶ 10). 

[64] Id., at 4 ( ¶ 11).

[65] Id., at 5 ( ¶ 12).

[66] Id., at 4 ( ¶ 11).

[67] Id., at 5 ( ¶ 13).

[68] Id., at 5 ( ¶ 14).

[69] Id., at 5 ( ¶ 15).

[70] “While the Principles themselves are universally applicable, the means by which they are realized will reflect the fact that we live in a world of 192 United Nations Member States, 80,000 transnational enterprises, 10 times as many subsidiaries and countless millions of national firms, most of which are small and medium- sized enterprises.” Id., at 5 ( ¶ 15).

[71] Id., at 5 ( ¶ 16).