Tuesday, September 20, 2011

An Analysis of the U.N. "Protect, Respect and Remedy" Framework Guiding Principles, Part VIII--A Preliminary Assessment of the GP

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"), the culmination of the work of UN Special Representative on business & human rights, John Ruggie, and his team.



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.




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) to final form (March 2011, the DP or "Draft Principles") from a more neutral perspective. For this purpose I have provided my own thoughts about that context and development. That analysis is divided into several parts:



This posting ends the series with a preliminary assessment of the Guiding Principles in the context of the "Protect, Respect, and Remedy" framework so well constructed by John Ruggie and his team.

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. 

(From Marcy Murningham, Human Rights Due Diligence, The Murningham Post 16 Aug. 2010)
_________________________________

The GP:  A Preliminary Assessment

Principled Pragmatism and the Limits of Formal Innovation.

The great challenge of the 21st century is that of the institutionalization of the system of globalization that emerged in the last decades of the 20th century.  The SRSG astutely explained that the issue of business and human rights is a microcosm of that challenge.[1]  A number of those challenges remain pointed and unresolved in the framing architecture of the GP.  This section examines a number of the more significant issues that are either raised by or remain unresolved in the GP.  The section also suggests the potentially significant institutional effects of the framework on the relationships between the state, the international community, and business in the context of globalization.

1.  The Dilemmas of the Law-State System in a Global Context. The SRSG’s GP principles outlining the extent of the state duty to protect human rights raises a number of challenges that reflect both the difficulties of moving forward the contemporary culture of the law-state system and the conundrums of building a system on an acceptance of the basic assumptions on which that law-state system is built.

GP Principle 1 nicely suggests the difficulties.  On its face it suggests the obvious—that states are required to abide by their obligations under international law, whether they are obligations specifically undertaken pursuant to conventional law or treaty, or whether they are part of the complex of obligations understood as customary international law.  But there is the problem.  First, the state of customary international law remains contested.  Some believe that customary international law does not exist.[2] Others believe that some elements of customary international law is binding even on rejecting states, and that such binding customary norms, in the form of jus cogens,[3] can be the subject of international tribunals.[4]  Second, many states apply the logic of their law system to substantially narrow the legal effect of both customary and conventional law within their territories.  Many states talk the position that conventional law applies to them only to the extent that they have agreed to be bound.  In some jurisdictions that agreement to be bound is itself ineffective unless the legislative body actually incorporates the convention’s obligations into the domestic legal order.[5] Additionally, even where a state agrees to be bound, it may condition that agreement on any number of reservations, the legal effects of which are still a subject of lively academic debate.[6]  Most importantly, as a matter of law, international instruments that are neither treaties nor conventional law are not, strictly speaking, legally binding on states.   Lastly, in the absence of a legitimate interpretative body, it is sometimes difficult to develop a consensus on the interpretation of treaties or conventions, or their application in specific circumstances.  The International Court of Justice[7] is sometimes of help, but its jurisdiction is also limited and to some extent optional.[8] 

The limitations ultimately written into GP Principle 1 might be understood by drawing a parallel to the governance framework of the European Union. This tension is better understood in two parts.  First, the tension can be understood as one touching on the supremacy of international law over incompatible domestic legal measures.  The second, and more difficult tension, can be understood as touching on the supremacy of international law (and its human rights obligations) over incompatible provisions of domestic constitutional law.

   The issue of the supremacy of Community Law over incompatible domestic law has over a long period of time tended to be accepted as a basic feature of membership within the E.U.   In many Member States, the principle of the supremacy of Community law is accepted as a matter of domestic constitutional law as well--at least with respect to incompatible national legislation.   In some cases, the Member States have re-constructed their constitutional orders to explicitly accommodate Community Law Supremacy. 

   But, the issue of the nature and extent of the primacy of Community law within the European Union, especially where such primacy may contravene basic principles of the constitutional order of a Member State has proven a difficult one in theory. Member States appear to reserve to themselves an authority to judge the extent of that authority, especially where it might affect the fundamental sovereign character of the state, or the basic human rights and organizational provisions of its constitutional order. Most famously, perhaps, the Irish Supreme Court noted, "With regard to the issue of the balance of convenience, I am satisfied that where an injunction is sought to protect a constitutional right, the only matter which could be properly capable of being weighed in a balance against the granting of such protection would be another competing constitutional right."   On the other hand it has proven to be possible to sidestep these conceptual questions through the adoption of a functional approach to the issue--combined with just in time amendments to Member State constitutions or Treaty accommodation the constitutional sensibilities of Member States.

   But it is not clear that beyond the European Union and its deep system of collaborative internationalism, states will be willing to read the State duty to protect as importing an obligation to (at least in good faith) accept the supremacy of international law generally, or more specifically European against an incompatible provision of international law.  Less likely is a willingness, as a matter of constitutional policy, for states to commit to a policy of collaborative constitutionalism requiring attempts a constitutional revision or interpretation to ensure conformity with applicable international standards.

Another difficulty avoided centers on the identification of the aggregate of obligations that constitute applicable international human rights law.  The GP define “internationally recognized human rights” in a political or sociological, or even cultural sense.  But then the Guidelines appear to hold only non-state actors—and principally corporations—to that definition.[9]  They are binding in those senses too.  That binding effect is most prominently important in connection with the development of social norm systems that affect the corporate responsibility to respect human rights.  It is also possible to assume that the documents that constitute the International Bill of Human Rights serves as a consensus generally of state obligations in a policy sense.  But the International Bill of Rights does not constitute a legally binding set of documents equally applicable to all states, or even to all of the developed states.  As a legal rather than as a policy matter, the International Bill of Rights may create some obligation, but may not obligate all states in the same way or to the same extent. Those differences may serve as a basis for resistance by states to specific applications of some or all parts of the International Bill of Rights.  It can also serve as a significant point of friction if State A seeks to effectively impose the requisites of  International Bill of Rights on State B through the extraterritorial application of the provisions on corporations hosted in State B. Where the extraterritorial application can be contrary to the constitutional norms of State B, the application of the GP become more difficult. It is understandable, then, that the GP Principle 1 commentary speaks of the state duty has legal and policy dimensions.  Depending on the state, the balance between the legal and policy pull of the International Bill of Rights that form the core of the human rights obligations of states will vary considerably, and the potentially different regimes of rights to which a company is subject while operating in a host state can be even more pronounced.  Indeed, unevenness in the recognition and application of the International Bill of Rights by states will likely be the norm, at least initially.

The extraterritorial provisions, long supported by the SRSG,[10] continues the dilemma of managing the leakage of state power into the borders of other states within a system in which all states are ostensibly objects of equal dignity and treatment.  Extraterritorial application is a reasonable response of high human rights value states to deficiencies in the incorporation of the obligations of First Pillar duties in other states.  And it may be reasonably grounded on an extension of legal duties of the conduct of national corporate citizens when they travel and engage in activities abroad.  The obligation is not for the benefit of the host state, but rather is deemed to be essential to the internal ordering of the state and the management of the conduct of its citizens.  Yet to some extent, extraterritoriality of this sort also smacks of "status" legislation that has tended to be disfavored in the modern era within constitutional systems like that of the United States.  The SRSG suggests that extraterritorial projects of human rights duties "can provide much-needed support to host States that lack the capacity to implement fully an effective regulatory environment on their own."   However, extraterritorial application of home state law can easily be (mis?)characterized as indirect projections of state power abroad.  When such projections are directed at states with a history of colonial rule, sensitivities may make such projections not merely unpopular but unlawful within the territory of the host state.   Yet the neo colonialist argument has been used selectively.  It is easily applied to former colonial powers asserting extraterritorial powers, but tends to be overlooked when the projecting power is a state that can style itself as still "developing." The SRSG has noted that the issue of the lawfulness of extraterritorial legislation remains unsettled as a matter of international law.    Where the State itself is engaged in business abroad, the SRSG suggests that there are "strong policy reasons for home States to encourage their companies to respect rights abroad.   And indeed one might suggest that in those cases the State duty to protect necessarily embraces all state activities domestically and elsewhere and in whatever form conducted.

One of the great markers of globalization is the change in the nature of the power of the state—still powerful but now more ambiguous both within its own territory and projected onto the territory of other states.  The GP look both forward and backward on the issue of state power.  On the one hand, the GP continue to encourage the extraterritorial application of state power.  Though the encouragement is permissive,[11] two distinct and not necessarily positive actions are encouraged.  The first is the encouragement of the traditional system of subordination that marked the relationship (and the state system itself) between states from the 19th century.[12]  Under CG Principle 2, strong and rich states will be encouraged to project their power through the businesses they control within the states in which those corporations operate.[13]  Companies will be encouraged as well—not to look to compliance with the law of the host state, but rather to look to compliance with the law of the home state.  One effect is positive in a sense, such encouragement will create incentives for harmonization of law by encouraging host states to conform their domestic law to that of home states with significant corporate activity in their territory.  But the other effect might be less positive—especially in weak governance zones—the effect might be to encourage the transfer of the functions of the law state form the host to the home state.  Rather than encourage the development of stronger or better government in the host state, the power of extraterritoriality might be to transfer that power to the outside regulating states, whose values, laws and courts would substitute for that of the host state.  This could deepen weak governance rather than encourage the development of stronger government in weak governance zones. 

2.  The law-policy conundrum of the state duty to protect. The issue of the scope of human rights norms, and the differences between the first pillar’s legalism and the second pillar’s functionalist internationalism, highlights another tension within the state duty to protect pillar—that between state legal and policy obligations.  That tension mimics, to some extent, those between the formal law systems context of the state duty and the functionalist social norm based context of corporate governance rules.   The GP distinguish between the narrow formalism of legal constraints and the open-ended possibilities of policy considerations.  It serves, in the latter respect, to provide suggestions and best practices as a means of helping shape the universe of permissible responses to policy issues touching on the regulation of business and human rights without appearing to mandate this approach.  The idea appears to be to set the stage for an organic growth of right conduct and policy without appearing to manage that movement.

It follows that one of the great innovations of the Guiding Principles is its recognition that states operate on two levels, both of which having some governance effects.  The first is the most traditional and well understood—the legal obligations of states both internally with respect to the organization and application of its domestic legal order, and externally with respect to the obligations of states under international law.  The second is less well known and its role in managing conduct much more disputed in the conventional literature—the regulatory effects of state policy.  While this second form of regulatory regime is beginning to be better manifested, for example in the operation of large sovereign wealth funds,[14]  it is not usually the object of operationalization precisely because it is not law/regulation and thus is not usually considered a legitimate source of state action that affects the conduct of the state and others.  But the recognition of the policy obligations of states produces issues which are to some extent unavoidable. 

3.  Character of the Guidelines: Framework, Handbook, Roadmap or Law?  Soon after the draft Guidelines were announced, Dr Peter Davis is Ethical Corporation’s politics editor published an opinion piece that characterized the GP as a handbook.[15]  It is not clear that Dr. Davis is correct, but the point he raises is critically important for the evolution of the Guiding Principles as they move from acceptance toward implementation.  Unless individuals can agree on the manner in which the Guiding Principles are to be read, the possibility of fragmentation in interpretation, even at the most fundamental level, remains quite likely.  That fracture is most likely to mirror the fractures in approaches to law and law interpretation between law systems that are still open to custom and organic growth through application, and those who approach the Guiding Principles like a Code—a self contained and internally self referencing system that defines the entire possible universe of interpretive possibility within its provisions, more or less.  The former would evolve through deductive reasoning principles grounded in the aggregation of application of the Guiding Principles in state judicial and non-juridical for a, business grievance structures to the extent they are reported, policy reactions, and the work of international organs applying their related soft law frameworks which incorporate the Guiding Principles.    The latter would deepen the implications of the formal construction of the Guiding Principles as Code—using its hierarchically arranged principles structure as the basis through which it can be applied in particular context without thereby moving beyond the parameters of the Guiding Principles themselves as the sole legitimate source of rules. The former can tolerate a considerable degree of difference in result in interpretation—certainly one of the permissible outcomes implicitly suggested in the Guiding Principles Commentary. The later will require something like the institutionalized interpretive structure of the European Court of Justice system[16] to retain a stronger hand in the interpretive growth of the Guiding Principles.  The choice of the language of interpretation will have profound effects on the culture of application.[17]  It is understood why the SRSG did not wade into those institutionalizing waters.  Yet the manner of institutionalization and guidance will be critical to the success of the Guiding Principles.  One of the great projects that await those who would move the Guiding Principles from document to applied governance will be to gain a measure of control over the process of its application.   At some point it will be necessary to order this heterodox and polycentric operation—not necessarily to unify it, but to ensure substantial coordination with a necessary flexibility. 

4. The Character of Corporate Law Making.  The heart of the corporate responsibility to respect human rights is human rights due diligence.  In the hands of the SRSG and as memorialized in the Guiding Principles, human rights due diligence is drafted into multiple service.  In one sense, human rights due diligence, as the regularization of policy serves a legislative function.[18]  This suggests an alternative to the decades long drift of corporate governance to the use of contract for regulatory effect.[19]   Second, human rights due diligence serves an executive function, providing the information be necessary for determining corporate action.  Third, human rights due diligence also serves as a monitoring device—for use by both internal and external stakeholders—to make accountability more efficient.  Lastly, human rights due diligence serves a fact finding and remediation function—providing the basis for both the process and substantive content of resolving the consequences of human rights affecting actions.  The SRSG makes clear that the principal audience for these efforts is not the state but major corporate stakeholders—customers, investors, local communities, labor, and others—who might be affected by the human rights affecting activities of corporations.[20] This is a consent-based system which is, in its own way, a reflection of the more formalized notions of legitimacy and consent that frame modern Western liberal constitutionalism.[21] Human rights due diligence, then, organizes and constitutes, in institutional form, a social norm system and makes it operative in a way that is attached to but not completely dependent on the state and its law system. That system is grounded in the logic of social norm system—constituted through and enforced by the collective actions of those critical stakeholders participating in the system itself, and based on disclosure.[22]  But vesting so much into one process/product may well overwhelm it.  The regulation of self regulation within a constraining international law normative field will likely require further development as the effective realities of globalized private governance itself continues to evolve.[23]  This is consistent with the facts based principled pragmatism on which the system itself is based, but one that suggests a dynamic rather than a static element to the enterprise.  Human rights due diligence will start off fairly well defined—but the logic of its many purposes will tend to vastly expand, and to some extent, distort the device.[24]  At some point, and likely soon, the legislative, administrative, monitoring and remediation functions of human rights due diligence will have to be reframed and developed along the lines of the logic of each.  

A related issue touches on the mechanics of human rights due diligence, and specifically the normative effects of data gathering, a subject left substantially unexplored in the Guiding Principles.   This issue is most dramatically drawn in the context of the early focus on gender inequalities and the human rights regulation project of the Guiding Principles.  Data collection, though, is hardly a ministerial act.  The choice of data suggests a normative privileging that itself might legitimate emphasis in one area of human rights over others.  I have suggested the regulatory aspects of data collection in its guise as a subset of surveillance. “Surveillance is one of the critical mechanisms of this expansion of private power into what had been an exclusively public sphere. Increasingly, public bodies are requiring, or permitting, private entities to monitor and report on the conduct and activities of a host of actors. It has also come to serve public bodies as a substitute for lawmaking. Surveillance is a flexible engine.”[25]  Surveillance has both domestic[26] and transnational forms.[27] “Together, surveillance in its various forms provides a unifying technique with which governance can be effected across the boundaries of power fractures without challenging formal regulatory power or its limits.”[28]  As such, one could understand this emphasis as suggesting a prioritization of gender issues in the Second Pillar responsibility to respect.[29]  

But the SRSG points to a more benign function for data gathering.  "Some have suggested that only with disaggregated data can companies identify the relationship between gender and their human rights impacts.  It is not part of a company's baseline responsibility to respect human rights to address the social formation of gender biases.  However, human rights due diligence should identify differential impacts based on gender and consequently help companies avoid creating or exacerbating existing gender biases."[30]  The subtle distinction might at first be startling – especially in an otherwise positive values based and behavior modifying approach to corporate behavior.  But closer reflection suggests the strong connection between this position – that data be gathered to mind the corporation's behavior but not that of the society in which the corporation operates – and the foundational distinction between the legal rights regimes peculiar to the First Pillar and the social rights regimes at the heart of the corporate responsibility to respect human rights.  This is made clearer by the SRSG's explanation of the meaning of a multidimensional approach to gender data.  The multidimensional approach "means that human rights due diligence should include examination of gender issues at multiple levels – for example, the community (e.g. are women in a particular community allowed or expected to work); and the society (e.g. is there institutionalized gender discrimination, whether by law or religion)." 

Issues of social organization, and communal mores, including those touching on the status of women, are matters for the state – and the First Pillar.  Issues of corporate involvement in issues touching on the status of women – as realized within corporate operations – are matters at the heart of the Second Pillar.  Those issues, in that context, give rise to an autonomous set of responsibilities, the touchstone of which is not necessarily dependent on the resolution of gender status issues within a particular state.  As such, data gathering and analysis is critical for the production of corporate action that may lead to treatment of women, and responses to concerns touching on the status and treatment of women, within the corporation in ways that are distinct from those presumed satisfactory elsewhere within the state in which a corporation operates.  The object is to control the behavior of corporations, not to reform the social, political and legal structures of the states in which such corporations operate.  This is an especially important distinction in cases where multinational corporations are operating within host states that have a long history of colonialism and a strong sensitivity to interference with sovereign prerogatives. 

But this bifurcated approach also produces a set of potentially necessary tensions.  First, at its limit, it may produce a situation where the corporate responsibility to respect is inconsistent with the obligations imposed through host state law.[31]  Second, the distinction between the "social formation of gender biases" and "creating or exacerbating existing gender biases" through corporate policy may be both artificial and difficult to keep separate.  Indeed, one recalls the approach of the Sullivan Principles was to focus directly on corporate behavior as a means of projecting social-cultural-and legal change into the host states in which these principles were applied. "General Motors was the largest employer of blacks in South Africa at that time, and Sullivan decided to use his position on the Board of Directors to apply economic pressure to end the unjust system.  The result was the Sullivan Principles, which became the blueprint for ending apartheid."[32]  The successor Global Sullivan Principles makes these connections explicit.  The resulting political program inherent in application of corporate second pillar responsibilities may produce friction, especially if the methodological focus is understood as containing a substantive element targeting the host state.   Lastly, the nature of gender rights remains highly contested.  This produces fracture, even in the approach to data gathering.  Consider, in this regard, the connection between the Universal Declaration of Human Rights and the Cairo Declaration on Human Rights in Islam.  Their possible complementarity (or incompatibility) may substantially direct both the methodological framework within which gender issues are understood, and data harvested, as well as the analytics produced therefrom.

5. The Problem of Double Character: State Owned Enterprises and Corporations in Conflict Zones. The Guiding Principles lend themselves well to the constrained complexity of simple polycentricity—the coordination of law-state, social norm-corporate and international systems.  Where each operates autonomously and within the logic or their organization, coordination is possible and harmonization relatively easy to conceptualize if not realize.  But difficulties multiply where institutions begin to act against type.  The problems of state owned enterprises and those of corporations operating in the absence of an effective government test the Guiding Principles as an integrated system.  The Guiding Principles acknowledge the problems but offer little but the state.  This comes as something of a surprise. 

In the context of corporate activity in conflict-affected areas, the Guiding Principles[33] tend to treat these entities the way international law treated states that were not members of the Family of Nations before 1945.[34]  In effect, in the absence of a local government, the government of the host state can control the activities of the corporation in the host state and thus control the effect of corporate economic activity abroad.[35] But it is hardly fitting for states in control of great corporate actors to use those entities as the vehicle through which these states can project regulatory and economic power outward.  Multilateral action would be more appropriate to avoid the appearance of domination and incorporation.[36]  That the Guiding Principles do not suggest this as a baseline represents both a bow to reality (pragmatism)—states engage in these activities and these regulatory projections with or without permission.  That it suggests that such national projections of power be constrained by norms that have an international component suggests a more subtle effort to manage national activity within an international framework; but the tension remains.

In the context of state owned enterprises, the Guiding Principles tend toward a divide and manage principle.[37]  States are urged to take additional steps when there is an ownership relationship between states and enterprises.  States are reminded that such enterprises are also subject to the obligations (including human rights due diligence obligations) of the Second Pillar, but the formal distinction between state and enterprise is preserved.  This is an odd result, particularly in the face of a the functionalism at the core of the corporate responsibility to respect human rights that specifically eschews legal constructions in the application of the Guidelines to business entities.[38]  But that difference in approach suggests a greater divergence—between the innate formalism of the state duty to protect principles and the more functionalist corporate responsibility to respect principles.  That distinction, supported by the reality of custom and behavior, however, produces tension when entities straddle the state-corporate divide.  A different approach might have been more in accord with European approaches to the issue of state involvement in economic activity, one which starts from the position that state involvement in activity changes its character from private to public.  In this case, state owned enterprises ought to be treated as both subject to the direct duty obligations imposed on states and to the respect obligations that derives from their organization as business enterprises.[39]  That this imposes potentially greater obligations on state owned enterprises merely mirrors the advantages they can also derive from that relationship unavailable to private enterprises.   

6.  Remedies. The access to remedies provisions present the least autonomous and perhaps the least robust link of the tightly integrated system that the Guiding Principle represent.  Between the initial construction of the third pillar access to remedy of the “Protect, Respect and Remedy” framework,[40] and the final version of the Guiding Principles, the access to remedies prong of the Guiding Principles became more an expression of the importance of the state as a legitimating source of remediation.  This is not surprising, of course.  To some extent this movement is bound up with important ideological foundations of Western notions of rule of law and the legitimate constitutional order, both of which are deeply tied to the idea of an independent judiciary as the critical component ion the protection of individual rights against others and against the state.[41] But that concept has less of a place where remediation also is meant to embrace other governance systems providing individuals with a basis for complaint grounded in norms other than the law of a particular state. There is a strong nod in that direction in the General Principles,[42] but these mechanisms are clearly meant to serve a marginal role—either to prevent harm or to fill gaps.  The remediation workhorse remains the state and its judicial apparatus.

None of this is illogical; and it reinforces conventional notions that were a strong element of the critique of important sectors of the non-governmental organization community.[43] But it tends to reduce the access to remedies to an instrumental application of the consequences of the normative objectives of the state duty to protect and the corporate responsibility to respect human rights.  A richer approach might have recast the third pillar access to remedies away from the  stakeholders at the center of the first two pillars—states, business enterprises, non-governmental organizations, public international organizations—and toward the critical object of this enterprise—individuals suffering adverse human rights impacts. The remedial provisions assume a more autonomous role by centering its provisions on the obligations and privileges of stakeholders who belong to that class of individuals or groups affects by state or corporate activity with human rights impacts.  Thus turned around, access to remedy becomes a more useful vehicle for the elaboration of the obligations of actors to avoid and remediate harm.  That obligation, of course in accordance with the structure of the Guiding Principles, be limited to law (legislation and dispute resolution remediation) for states, and governance norm frameworks (social norms and contract policies, including the policies at the heart of human rights due diligence) for corporate actors.  Within that framework, international organizations and other collectives organized to fashion standards and remediation might also assume a greater place within the constellation of remedial alternatives available to individuals.   One could try to interpret the current framework in that direction, but it is more likely that a consequentialist structure will be used.  The result is the loss of a mechanics, inherent in the development of the “Protect, Respect and Remedy” framework that might have fleshed out the relationship, within these complex and overlapping governance structures, of the rights bearers to those whose actions may adversely affect their interests.   

7.  Inter-systemic Issues.  The great challenge of polycentric structuring is the approaches chosen for the ordering of the relationship between coordinating systems, that is, the challenge of the effectiveness of their structural coupling.[44] The issues of interactions among state and corporate governance systems, along with that of international public and private organizations that supplement and compete with both, presents an important unresolved issue that parallels that of the future of legitimate interpretation of the Guiding Principles themselves.  On the one hand, this process can be understood as organic, subject to the sum of the combination of the logic of the character of each of the actors.  On the other, the strong instrumentalist character of the Guiding Principles opens a great temptation to coordination and management of these relationships, and likely to some or another greater end, that have some substantial limitations.[45]

Second, autonomy of the corporate responsibility is also built into the scope of application rules of DP Principle 12 (GP Principles 12-15).  The responsibility applies “across a business enterprise’s activities and through its relationships with third parties associated with those activities”[46] The validity of this scope is problematic, at best, under the rules of the domestic legal orders of most states.  It disregards the complex and deeply embedded legal protections accorded to entities separately constituted as legal persons.  It would ignore principles of asset segregate built into the legal regimes of corporate limited liability.  It ignores rules for piercing the corporate veil.  It also converts contract law into governance relationships, especially to the extent it a seeks to impose obligations to control behavior on the entity in the superior position within supply or value chains.  Activity rather than legal relationships form the touchstone of the scope of the responsibility to protect.[47] None of this is necessarily bad; but all of it suggests a basis in legitimacy well outside the construct of the law system rules of domestic legal orders.[48]  The essence of corporate personality and the character of its relationships with others is grounded in substantially different standards outside the law state system than within it.  GP Principle 12 is built on the recognition of that distinction.

Third, autonomy is also built into the construction of GP Principle 14’s application to “all enterprises regardless of their size, sector, operational context, ownership and structure.”[49]  This portion of the standard effectively ignores the rules of legal personality on which the law of corporations in virtually every state is based.  The standard collapses corporate personality into single enterprises the legal consequences of the actions of any portions of which triggers the responsibility to respect within the entire enterprise.  This is impossible under the domestic law of most states, which for example, would impose strict fiduciary duty rules on the boards of distinct corporations making up an enterprise.  The GP suggests that while the obligations corporations may be grounded on the basis of particular standards according to the laws of the states in which they are domiciled or operate, the responsibility to respect human rights is not limited by those legal rules.

Fourth, the basis of the responsibility to respect appears to be functional rather than formal.  It is to some extent grounded in principles of power relationships.  If a corporation has power over another in the context of their relationship, that corporation has a responsibility to respect human rights within the context of that power.[50]  Importantly, protection from legal liability does not follow from compliance with the autonomous obligations derived from the corporate responsibility to respect.[51] Thus, compliance with corporate responsibility rules does not insulate a corporation form liability under the law based rules of the states in which it is domiciled or operates. 

Fifth, the functional element of the responsibility to respect, and its autonomy from law, is emphasized in the description of the governance universe that makes up the substantive element of the responsibility to respect.  “Depending on circumstances, companies may need to consider additional standards.”[52] These are sourced in international rather than the domestic law of any state, with specific reference to international humanitarian law and the universe of U.N. instruments specific to vulnerable and/or marginalized groups, such as indigenous peoples, women, ethnic and religious minorities, and children.[53]

Lastly, the scope rules of the responsibility to respect human rights includes a strong caution against a conventional approach to its effectuation, grounded in notions of risk assessment common to financial reporting.  The Commentary makes clear that a risk assessment approach should not be undertaken, especially one in which the costs of compliance are balanced against the benefits accruing to a failure to respect human rights.  Likewise companies may not balance the benefits of respecting human rights in one instance against their failures to respect human rights in others.[54]   With these caveats, though, some room for incorporation within the risk management functions of corporate operations is permitted.[55]

But this systemic autonomy bumps up against reality as well.  One in particular is worth mention here; it is emblematic of the sort of tension that might threaten this Guiding Principles construct—the actions required of an enterprise where the laws of a domestic legal order conflicts with the social or international norms to which the corporation might also be bound. The Guiding Principles do not focus on this issue directly, but the thrust of the approach is clear—the rules of the domestic legal order preempt competing norms.[56]  But the Principles in this case tend to inhibit rather than encourage bridging action in an effort to bend to the hierarchy of law that frames the Principles. 

For example, it might have been possible to suggest a more instrumental balancing when corporations are faced with conflicting requirements based on the sort of decision balancing procedures and proportionality principles already well embedded in the Principles.[57] That instrumental balancing could proceed through four decision steps: (1) exploration of the possibility of reconciling the conflict between standards through interpretation;[58] (2) if no reconciliation possible, negotiation of an exception or solution with the State;[59] (3) if mediation or informal discussion with State officials is unsuccessful, then challenge the law;[60] and (4) where challenge is unsuccessful consideration of the continued feasibility of operating in the offending jurisdiction, assuming that the company is now forced to choose between national and international standards.[61]       Only when lawful challenge proves unsuccessful does a company actually face the issue suggested by the problem--reconciling inconsistent national and international obligations to respect human rights. In that case, the company must make a decision based on the greater good in terms of human rights.[62] The example of Google's well publicized initial determination to engage in business in China in the face of national censorship requirements provides a good illustration of the nature of the decision. In that case, Google decided that there was more human rights benefits to providing some greater amount of information to Chinese customers than to abandon China altogether.[63]   It is important to remember that decisions made in this context are dynamic. They require constant review as circumstances change. Where the human rights benefits diminish in the face of continued inconsistency in legal requirements, and then the company must reevaluate its business decision in order to meet its "respect" requirements under the three pillar mandate. Again, Google provides a good illustration.  The Company publicly sought to reevaluate its agreement to comply with Chinese censorship rules in the aftermath of  cyber attacks on its operations.[64] 

       All of these steps could be more effective if taken in collaboration with peer companies, nongovernmental allies, and where applicable the home state.[65] This is especially useful where these collectives can develop models of decision and analysis that are context specific--the example for labor issues, or for issues peculiar to a particular industrial sector. It might also provide a useful area to stimulate collaboration between industry and civil society groups.  It is in this context that the General Principles missed an opportunity to mirror the multilateral governance provisions of the state duty to the corporate responsibility, including the incorporation of the General Principles themselves in the work of multilateral corporate groups.[66] That absence illustrates both the promise and the limits of the General Principles in its initial iteration. 


Innovation is never perfect—either in conception or implementation.  Reality always serves as the ultimate limiting principle for both theory and practice.  All innovative movements have confronted this reality.  Those that have remained unbending have failed; those that have sought to preserve what they could to advance their project in the face of the constraints that reality imposes tend to survive, and sometimes flourish.  The SRSG’s voyage of principled pragmatism has served the “Protect, Respect and Remedy” framework well; its insights have produced the shortfalls examined at length in the body of this work, but also marked the extraordinary success of the project itself.  This is no small matter—despite the pessimism of all stakeholders—states, corporations, non-governmental and public international—the SRSG was able to craft a coherent system of governance and obtain official endorsement of states acting through an international organization not known for its unity of vision or purpose.   That alone will be the object of study by political scientists, institutional theorists and sociologists for some time to come.  The object of this article, though, was the framework itself.  Articled as a set of dense principles, and whatever its shortcomings, it has opened a number of significant pathways to development of law and governance frameworks.  It accepts that there are formal systems of governance beyond those of the state.  It begins to make a pragmatic case for the interlacing of international law and domestic legal orders, it recognizes the governance aspects of social norm systems and seeks a method of institutionalizing that role, it broadens the scope of remediation in a systematic way and attempts to harmonize the principles that serve as markets of legitimacy and accountability for each.  The Guiding Principles manage this within a overall framework that still grounds its operation in and through states and which continues to treat corporations and other actors as dependent on and subject to an exclusive (at least in the aggregate) control of states through law in ways that even states now find troublesome.[67]   It is likely to play a significant role in the development of governance frameworks in this area for some time to time.
 
(From Srah Altschuller, Human Rights Due Diligence and the Corporate Lawyer, Corporate Social Responsibility and the Law, Oct. 24, 2010))
[1] 2011 Report, supra, Para. 2.
[2] John Knox. The Human Rights Council Endorses “Guiding Principles” for Corporations, 15(21) Insights: American Society of International Law, Aug. 1, 2011.  Available  http://www.asil.org/pdfs/insights/insight110801.pdf.
[3] See, e.g., Bruno Simma and Philip Alston, The Sources of Human Rights Law: Custom, Jus Cogens, and General Principles, 12 Australian Yearbook of International Law 82-108 (1992).
[4] See Inter-American Court of Human Rights, Advisory Opinion OC-18/03 (Sept. 17, 2003) Juridical Condition and Rights of Undocumented Migrants (United Mexican States) (http://www.corteidh.or.cr/opiniones.cfm?idOpinion=24).
[5] This principle of non-self-executing treaties has been particularly well developed within the recent jurisprudence of the United States.  See, e.g., Medellín v. Texas, 552 U.S. 491 (2008).
[6] See e.g., Edward T. Swaine, Reserving, 31 Yale J. Int’l L. 307 (2006); Laurence R. Helfer, Not Fully Committed? Reservations, Risk, and Treaty Design, 31 Yale J. Int’l L. 367 (2006).
[7] See Robert Y. Jennings, The International Court of Justice After Fifty Years, 89(3) American Journal of International Law 493 (1995).
[8] See, e.g., Emilia Justyna Powell, and Sara McLaughlin Mitchell, The International Court of Justice and the World's Three Legal Systems, 69(2) Journal of Politics 397-415 (2007).
[9] That was a significant concession to states from the original draft of the Guiding Principles in which the scope of the human rights instruments was included in a definitions section.
[10] Opening Statement to United Nations Human Rights Council, Professor John G. Ruggie, Special Representative of the Secretary-General for Business and Human Rights, Geneva, 25 September 2006.
[11] GP Principle 2, and discussion supra at ----.
[12] Westel W. Willoughby, The Fundamental Concepts Of Public Law 309 (New York:                                          MacMillan, 1924).
[13] The reverse is unlikely—for example the extraterritorial control of corporate activity from small and less well off states into larger and richer states.  The reasons are obvious.  More interesting is the possibility of clashes in business culture and values between values exporting states whose governance system values are not compatible.  The battle for values dominance under the model of GP Principle 2 would occur not in the halls of international institutions nor in the territories of the home states but would be fought in the territories of host states where both extraterritorial rivals would be competing for business. The best example of that is the contests, already occurring, between Chinese and European firms in Africa. See, e.g.,  Jon W. Walker, China, U.S. And Africa: Competition Or Cooperation?, U.S. Army War College Strategy Research Project, March 15, 2008.  Available http://www.dtic.mil/cgi-bin/GetTRDoc?Location=U2&doc=GetTRDoc.pdf&AD=ADA481365.  For an example of the reporting in the popular press, see, e.g., Antoaneta Becker, China-EU Rivalry in Africa Sharpens, Inter-Press Service News Agency, June 15, 2010.  Available http://ipsnews.net/news.asp?idnews=51831.
[14] See, e.g., Larry Catá Backer,  Part I: Developing a Coherent Transnational Jurisprudence of Ethical Investing: The Norwegian Sovereign Wealth Fund Ethics Council Model, Law at the End of the Day, Feb. 1, 2011.
[15] “The result is effectively a handbook for the implementation of a comprehensive system for the management of business and human rights, with clear guidance for states and corporations.”  Peter Davis, Opinion:  John Ruggie:  A Common Focus for Human Rights, Ethical Corporation,  Available, http://www.ethicalcorp.com/content.asp?contentid=7253.
[16] Cf., Renaud Dehousse, The European Court of Justice:  The Politics of Judicial Integration (New York: St. Martin’s Press, 1999).
[17] Cf. Kawi Hang Ng, The Common Law in Two Voices:  Language, Law and the Postcolonial Dilemma in Hong Kong (Stanford:  Stanford University Press, 2009) (on the complex relationship between juridical formalism, language and legal norms in Hong Kong)).
[18] On the formalization issues of multinational policy, see, e.g., Anant R. Nergandhi, External and Internal Functioning of American, German and Japanese Multinaitonal Corporations: Decisionmaking  and Policy Issues, in Governments and Multinationals:  The Policy of Control Versus Autonomy 21 (Walter H. Goldberg and Ananti R. Negandhi, eds., Cambridge: Oelgeschlager, Gunn & Hain, publishers, 1983).
[19] See, e.g., Larry Catá Backer, Multinational Corporations as Objects and Sources of Transnational Regulation, 14 ILSA Journal Of International & Comparative Law 499 (2008).
[20] See, e.g., Larry Catá Backer, Economic Globalization and the Rise of Efficient Systems of Global Private Law Making:  Wal-Mart as Global Legislator,  39(4) University Of  Connecticut Law Review 1739 (2007).
[21] See, e.g., Howard Schweber, The Language of Liberal Constitutionalism 81-134 (Cambridge:  Cambridge University Press, 2007).
[22] See, e.g., Larry Catá Backer, From Moral Obligation to International Law: Disclosure Systems, Markets and the Regulation of Multinational Corporations, 39 Georgetown Journal Of International Law 591 (2008).
[23] The Guiding Principles recognize that this evolution will occur  within an imperative that looks “for ways of coordinating public and private rulemaking in such a way as to preserve both social autonomy and the public interest.” Harm Schepel, The Constitution of Private Governance:  Product Standards in the Regulation of Integrating Markets 32 (Oxford:  Hart, 2005).
[24] The SRSG recognized the difficulties of an all purpose approach, as well as the allure of its simplicity for business and sought to road test the device .  See Introduction to the Guiding Principles 2011, supra. Para. 11.  More field testing will likely produce additional sophistication in the development and deployment of the device.   
[25] Larry Catá Backer, The Surveillance State: Monitoring as Regulation, Information as Power, Law at the End of the Day,  Dec. 21, 2007. See, Larry Catá Backer, Global Panopticism: States, Corporations and the Governance Effects of Monitoring Regimes, 15 Indiana Journal of Global Legal Studies, 15(1) Indiana Journal Of Global Legal Studies 101 (2008). “It can be used to decide what sorts of facts constitute information, to determine what sorts of information ought to be privileged and which do not matter, to gather that information, to empower people or entities to gather information, to act on the information gathered.” Id.
[26] “In its domestic form it can be used to assign authority over certain types of information to private enterprises and then hold those enterprises to account on the basis of the information gathered.”  Id.
[27] “In its transnational form it can be used to construct a set of privileged information that can be gathered and distributed voluntarily by private entities on the basis of systems created and maintained by international public or private organizations as an alternative to formal regulation and to provide a means of harmonizing behavior without law.”  Id.
[29] For a discussion of prioritization, see, Larry Catá Backer, Business and Human Rights Part XVII--Implementation: Prioritizing, Law at the End of the Day, Feb. 18, 2010.
[30] United Nations Special Representative of the Secretary-General on Business & Human Rights, Issues: Gender. 
[31] See, Larry Catá Backer, Business and Human Rights Part XVI--Implementation: When International and National Norms Conflict, Law at the End of the Day, Feb. 17, 2010. 
[33] GP Principle 7 discussed supra.
[34] For the classic explanation, see, Westel W. Willoughby, The Fundamental Concepts Of Public Law 307-309 (New York:                                           MacMillan, 1924) (“Such States may be said to occupy in the international system much the same position as persons subject to the disabilities of infancy or alienage occupy in municipal law, but their exact position is hard to define.” Id., at 308).
[35] The corporation is directed merely to beware the dangers of complicity on conflict zones.  GP Principle 23.
[36] Indeed, the current framework supports the charge made by some states that the present system of globalization is meant to strengthen the hand of strong states to deal with weaker ones and reimpose the old system of hierarchy in the relations among states as a formal matter, or that the system itself is meant to favor the designs of global hegemons.  See, e.g.., Larry Catá Backer, Economic Globalization Ascendant:  Four Perspectives on the Emerging Ideology of the State in the New Global Order, 17(1) Berkeley La Raza Law Journal 141,  154-162 (2006). 
[37] GP Principle 7, discussed supra.
[38] See, GP Principle 14, discussed above.
[39] Fort he relevant discussion of the European approach in the context of the “golden share” cases, see, Larry Catá Backer, The Private Law of Public Law:  Public Authorities As Shareholders, Golden Shares, Sovereign Wealth Funds, And The Public Law Element In Private Choice of Law, 82(5) Tulane Law Review 1801 (2008).
[40] See 2009 Report, supra and 2010 Report, supra. and discussion supra.
[41] See, e.g., Louis Henkin, A New Birth of Constitutionalism:  Genetic Influences and Genetic Defects, in Constitutionalism, Identity, Difference and Legitimacy: Theoretical Perspectives 39, 40-42 (Michel Rosenfeld, ed., Duke University Press, 1994).
[42] See GP Principles 28-30.
[43] See, e.g., Amnesty International, Comments in Response to the Special Representative of the UN Secretary General on Transnational Corporations and Other Business Enterprises’ Guiding Principles—Proposed Outline (October 2010) IOR 50/001/2010, at 18-21 (“The Guiding Principles must be clear that there will be some corporate human rights impacts that must involve the State ensuring accountability and remedy.” Id., at 21).
[44] See, e.g., Niklas Luhmann, Operational Closure and Structural Coupling:  The Differentiation of the Legal System, 13 Cardozo L. Rev. 1419 (1991-92).
[45] This is what Bob Jessop has described in a related context as the tension between what is sometimes derided as market anarchy and  organizational hierarchy. See, Bob Jessop, The Governance of Complexity and the Complexity or Governance:  Preliminary Remarks on Some Problems and Limits of Economic Guidance, in Beyond Market and Hierarchy:  Interactive Governance and Social Complexity 95 (Cheltenham, UK;: Edward Elgar, 2010) (“inter-systemic concertation must be mediated through subjects who can engage in ex ante self-regulatory strategic coordination, monitor the effects of that coordination on goal attainment and modify their strategies as appropriate.  On the other hand, such bodies can never fully represent the operational logic. . .of whole subsystems.” Id., at 113).
[46] GP Principle 12.
[47] The Commentary emphasizes that “The scope of the corporate responsibility to respect human rights extends across a business enterprise’s own activities and through its relationships with other parties, such as business partners, entities in its value chain, other non- State actors and State agents. Particular country and local contexts may affect the human rights risks of an enterprise’s activities and relationships.” GP Principle 12 Commentary.
[48] See, e.g., Larry Catf distinct corporaitons making up an enterprise, would ich for example, would impose strict fiduciary duty rules on the boards oa Backer, Multinational Corporations as Objects and Sources of Transnational Regulation, 14 ILSA J. Int’l & Comp. L. 499 (2008)..
[49] GP Principle 14.
[50] The idea  is grounded in the concept of leverage. GP Principle 19(b)(ii). See discussion, supra, at ---.   In the Draft Guiding Principles Commentary these ideas were grounded in notions of influence.  It explains:  “‘Influence’, where defined as ‘leverage’, is not a basis for attributing responsibility to business enterprises for adverse human rights impacts. Rather, a business enterprise’s leverage over third parties becomes relevant in identifying what it can reasonably do to prevent and mitigate its potential human rights impacts or help remediate any actual impacts for which it is responsible.”  DP Principle 12 Commentary.
[51] The Commentary makes that point explicitly:
Conducting appropriate human rights due diligence should help business enterprises address the risk of legal claims against them by showing that they took every reasonable step to avoid involvement with an alleged human rights abuse. However, business enterprises conducting such due diligence should not assume that, by itself, this will automatically and fully absolve them from liability for causing or contributing to human rights abuses.
GP Principle 17 Commentary.
[52] GP Principle 12 Commentary.
[53] Id.
[54] “The responsibility to respect does not preclude business enterprises from undertaking additional commitments or activities to support and promote human rights. But such desirable activities cannot offset an enterprise’s failure to respect human rights throughout its operations and relationships.” GP Principle 12 Commentary.
[55] “Human rights due diligence can be included within broader enterprise risk management systems provided that it goes beyond simply identifying and managing material risks to the company itself to include the risks a company’s activities and associated relationships may pose to the rights of affected individuals and communities.” GP Principle 15 Commentary.
[56] GP Principle 23 speaks to seeking ways to honor principles of human rights when faced with conflicting requirements.  GP Principle 23(b) and discussion, supra.   This is consistent with the overall framework of the Guiding Principles.  See GP Principles 1 and 3.
[57] E.g., G.P. Principle 14 and discussion supra.
[58] The exercise of reconciling standards can involve the efforts of a number of departments in the corporation. Lawyers might be tasked to determine whether there are reasonable ways to avoid conflict, or whether reasonable alternative interpretations of national or international law is feasible; industry standards or local practice might be reviewed; officials might reach out to international bodies or local civil society elements for interpretation. Additionally, the company might review its planned actions in light of its objectives. Many times it may be possible to find alternative means to the same objective that avoids conflict. These processes are usually informal but can also lead to a decision to invoke formal processes for definitive interpretation (and thus lead to stage two).
[59] In this stage, there is an assumption that reconciliation is impossible and alternative means of avoiding conflict are not feasible. Now both formal and informal contacts must be made with the appropriate State officials to seek top mediate the conflict. This may involve a number of alternative approaches, from negotiating an agreement with the State (with the object of reaching an agreement that avoids violation of human rights norms), to seeking protection under bilateral investment treaties that incorporate international standards, to seeking legislative change in an appropriate manner.
[60] It is possible that discussions with State officials may not produce agreement that satisfies the requirements of international standards. In that event, the company must determine whether it ought to challenge the inconsistent national legislation. Challenge may take one of two forms in most cases. Usually this course suggests a legal challenge to inconsistent state law. Sometimes it may suggest political challenge. In the latter event, it may be important to solicit the help and counsel of local civil society elements. Special sensitivity ought to be exercised when engaging in challenge in countries with weak government or in conflict zones.
[61] It is possible that discussions with State officials may not produce agreement that satisfies the requirements of international standards. In that event, the company must determine whether it ought to challenge the inconsistent national legislation. Challenge may take one of two forms in most cases. Usually this course suggests a legal challenge to inconsistent state law. Sometimes it may suggest political challenge. In the latter event, it may be important to solicit the help and counsel of local civil society elements. Special sensitivity ought to be exercised when engaging in challenge in countries with weak government or in conflict zones.
[62] The idea is well known in the business literature.  Seem,, e.g., Thomas N. Gladwin and Ingo Walter, Multinationals Under Fire:  Lessons in the Management of Conflict 206-212 (New York: John Wiley & Sons, 1981) (withdrawal form apartheid South Africa).  These decisions are grounded in the application of social norm ideals.  These  are made evident through social mobilization and action by consumers, shareholders and non governmental organizations that may affect public opinion and economic decision-making affecting corporate profitability.  See, e g., Susanne Soederberg, Corporate Power and Ownership in Contemporary Capitalism:  The Politics of Resistance and Domination 138-159  (London: Routledge, 2009) (speaking to what she labels the marketization of social justice illustrated by the case of the Sudan divestment campaign).
[63] Google, Testimony:  The Internet in China, February 15, 2006. 
[64] See, Google, A New Approach to China, Jan. 12, 2010.
[65] Compare G.P. Principle 10 and discussion, supra.
[66] The closest provision, GP Principle 30, sets a substantive constraint on multi-stakeholder and other collaboration initiatives.  It assumes such efforts without encouraging them or considering them important instrumental elements in furthering the framework, nor does it provide a structure for collaborations between them and business in the construction and implementation of their human rights due diligence programs. It does recognize these possibilities, but gently.  It does suggest the similarity in issues of implementation but does not focus on the connection with other related systems.
[67]  For a discussion, see, Larry Catá Backer,  Private Governance, Soft Law, and the Construction of Polycentric Networks for the Regulation of Transnational Corporations, 17(1) Indiana Journal Of Global Legal Studies -- (forthcoming 2011).
 
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