Tuesday, November 29, 2011

On the New UN Working Group on Business and Human Rights: Building on the UN Guiding Principles

At the time the United Nations Human Rights Commission endorsed the Guiding Principles on Business and Human Rights: Implementing the United Nations “Protect, Respect and Remedy” Framework, it also established "a Working Group on the issue of human rights and transnational corporations and other business enterprises, consisting of five independent experts, of balanced geographical representation, for a period of three years, to be appointed by the Human Rights Council." See Human Rights Council, Seventeenth session, Agenda item 3, Promotion and protection of all human rights, civil, political, economic, social and cultural rights, including the right to development,  A/HRC/RES/17/4 (July 6, 2011).   

At its eighteenth session in September 2011, the Human Rights Council appointed the following five independent experts:

Michael Addo (Ghana)
Michael Addo is a Senior Lecturer in international human rights law at the University of Exeter. He holds a PhD and LLM and is qualified as a lawyer and advocate at the Ghana Bar. He has authored and edited several books including one of the earliest collection of essays on Human Rights Standards amd the Responsibility of Transnational Corporations (Nijhoff 1998) as well as many other journal and conference publications in this field.
Alexandra Jaquenetta (Colombia)
Alexandra Guaqueta holds a M.Phil./D.Phil. International Relations with expertise on global governance and is currently attached to the School of International Studies at Flinders University. Ms. Guaqueta’s has extensive academic and practical expertise particularly on the issue of business and human rights in conflict affected areas. She led the work in Cerrejon (Colombia) on piloting rights-compatible Grievance Mechanism guidelines.
Margaret Jungk (USA)
Margaret Jungk holds a PhD and Masters in International Relations and Political Science with a focus on human rights. She is the Founder and Director of the Human Rights & Business Department at the Danish Institute for Human Rights, which was the first dedicated unit on Human Rights and Business in a National Human Rights Institution worldwide. She has over a decade of experience advising multinational companies on mainstreaming human rights into business operations.
Puvan J Selvanathan (Malaysia)
Puvan Selvanathan advises multinational companies on global sustainability strategy, with a focus on the Palm Oil sector. He is an Architect by profession, holds an MBA and is now completing his DBA in Corporate Sustainability. He has been involved for over 10 years in developing the Malaysian business community’s understanding of ethics, good governance and corporate responsibility. In his current role he is engaged in establishing human rights principles in companies in the large-scale agricultural sector.
Pavel Sulyandziga (Russian Federation)
Pavel Sulyandziga holds a degree in economics and works on the issue of protection of indigenous rights in the context of business. He has worked in government agencies and community organizations. He was a member of the UN Permanent Forum on Indigenous Issues. He is currently a member of the Public Chamber of Russia (an elected statutory body of civil society of Russia), and chairs the Working Group on the development of remote areas of the North, Siberia and the Far East of the Russian Federation. (From Office of the High Commissioner for Human Rights, Have your say! Help a new UN body ensure respect for human rights by business, Nov. 2011).

The Working Group members formally took up their role as of 1 November 2011. (From Working Group on the issue of human rights and transnational corporations and other business enterprises).

The mandate of the Working Group is broad:

  • To promote the effective and comprehensive dissemination and implementation of the Guiding Principles on Business and Human Rights: Implementing the United Nations “Protect, Respect and Remedy” Framework;
  • To identify, exchange and promote good practices and lessons learned on the implementation of the Guiding Principles and to assess and make recommendations thereon and, in that context, to seek and receive information from all relevant sources, including Governments, transnational corporations and other business enterprises, national human rights institutions, civil society and rights-holders;
  • To provide support for efforts to promote capacity-building and the use of the Guiding Principles, as well as, upon request, to provide advice and recommendations regarding the development of domestic legislation and policies relating to business and human rights;
  • To conduct country visits and to respond promptly to invitations from States;
  • To continue to explore options and make recommendations at the national, regional and international levels for enhancing access to effective remedies available to those whose human rights are affected by corporate activities, including those in conflict areas;
  • To integrate a gender perspective throughout the work of the mandate and to give special attention to persons living in vulnerable situations, in particular children;
  • To work in close cooperation and coordination with other relevant special procedures of the Human Rights Council, relevant United Nations and other international bodies, the treaty bodies and regional human rights organizations;
  • To develop a regular dialogue and discuss possible areas of cooperation with Governments and all relevant actors, including relevant United Nations bodies, specialized agencies, funds and programmes, in particular the Office of the United Nations High Commissioner for Human Rights, the Global Compact, the International Labour Organization, the World Bank and its International Finance Corporation, the United Nations Development Programme and the International Organization for Migration, as well as transnational corporations and other business enterprises, national human rights institutions, representatives of indigenous peoples, civil society organizations and other regional and subregional international organizations;
  • To guide the work of the Forum on Business and Human Rights;
  • To report annually to the Human Rights Council and the General Assembly.  (From Working Group on the issue of human rights and transnational corporations and other business enterprises).
In addition, "The Council also decided to establish a Forum on business and human rights under the guidance of the Working Group to discuss trends and challenges in the implementation of the Guiding Principles and promote dialogue and cooperation on issues linked to business and human rights, including challenges faced in particular sectors, operational environments or in relation to specific rights or groups, as well as identifying good practices." (Ibid).

To aid it in its initial work, the Working Group announced that it
is inviting governments, companies, trade unions, international agencies, national human rights institutions and NGOs to share their thoughts to help it establish its work programme. The UN Working Group on Human Rights and Transnational Corporations and Other Business Enterprises will take into account proposals by all relevant actors in advance of its first session (16-20 January 2012), during which its five independent experts will determine the Group’s key thematic priorities and activities. Let them know what you think at wg-business@ohchr.org. Deadline for submissions is 8 december 2011. (From Office of the High Commissioner for Human Rights, Have your say! Help a new UN body ensure respect for human rights by business, Nov. 2011).

Those who might be interested in where and how the Working Group helps take the Guiding Principles might consider contributing to the dialogue, or just following along.  The most important aspect, though, will be the way in which, perhaps through the Working Group, the soft law multi-level soft law structure of the Guiding Principles, might be institutionalized.  That might occur first through soft institutionalization--through the Working Group and the development of a web of civil society allies, which together will produce a set of authoritative glosses on the Guiding Principles  in which the normative focus of the Guiding Principles will be nurtured and authoritative interpreters are identified.  Hard institutionalization may follow. In that later process, it will be most interesting to see how the organizational prerogatives of the Human Rights Commission is harmonized with the institutional capacities of the OECD NCP system. While the two institutions are working toward the same ends, and incorporating the Guiding Principles in substantial respects, their organizational aims and cultures are sufficiently incompatible that it may make what is a natural partnership much harder to effectuate.

Sunday, November 27, 2011

The Taíno in the Caribbean

The Taíno have a special place in Caribbean culture.  On the one hand, it has been common to consider the Taíno–an original people of the Caribbean, to be “lost.”  On the other, the Taíno are considered one of the great contributors of Latin-Caribbean culture and to the establishment of a new indigenous element in that region.  See, w.g., Larry Catá Backer,   From Hatuey to Che: Indigenous Cuba Without Indians and the U.N. Declaration on the Rights of Indigenous Peoples (March, 27 2009). American Indian Law Review, Vol. 33, 2009. 

(From Robert M. Poole, “What Became of the Taíno?,” Smithsonian Magazine, Oct. 2011; Photographs by Maggie Steber. (“Taíno leader Francisco “Panchito” Ramírez Rojas offers a prayer to the sea near Baracoa on Cuba’s eastern coast. “))

 The Taíno raise issues of nationality, race, culture and the taxonomy of ethno-racial classifications that were perhaps more useful to a seventeenth century slave holding society in need of easy sorting devices than to a modern society.  The United Confederation of Taíno People, for example, seeks to reconstitute Taíno, as something more than a memory.

Friday, November 25, 2011

Governance Networks and the Institutionalization of Extra-National Rule/Norm Systems

For some time now, writers have focused increasingly on non-state lawmaking and its consequences. Much of the best of this work focuses on public, or public directed networks.  See, e.g., Anne-Marie Slaughter, A New World Order (Princeton NJ: Princeton University Press, 2004).  At the same time, private sector participation in governance is increasingly also understood as a source of rule making, looking at social norms to create a structural framework for operation beyond public regulatory systems.  For an early effort at theory, see, e,.g., Candace Jones, William S. Hesterly, Stephen P. Borgatti, A General Theory of Network Governance: Exchange Conditions and Social Mechanisms, The Academy of Management Review, Vol. 22(4):911-945 (1997).  

 (photo (c) Larry Catá Backer 2011)

In some cases governance appears to be moving toward a mixed private-public model.  See, e.g.,   Backer, Larry Catá, Private Actors and Public Governance Beyond the State: The Multinational Corporation, the Financial Stability Board and the Global Governance Order, Indiana Journal of Global Legal Studies, Vol. 17, 2011. In other cases, private networks can produce public governance.  See, e .g., Errol E. Meidinger, Forest Certification as a Global Civil Society Regulatory Institution, in Social and Political Dimensions of Forest Certification 265-292 (Errol E. Meidinger, Chris Elliott and Gerhatd Oesten, eds., 2003).

Networks, then, can produce effects on rule making understood in its public (regulatory) context, as normative values framing in public and social governance contexts and as structuring social norm systems themselves.  These effects can exist autonomously of the state, or produce regulatory effects mediated through international organizations, or appeal directly to the masses and effect public policy from the bottom up. More importantly, networks can serve as the sites where the normative values that can affect both individual choice and the political decisions of people that might at times factor into the policy determinations of officials operating with governments are sourced or managed.

When these effects are produced by predominantly private entities, the issues become more complex.   On the one hand, such systems offer the possibility of harmonized normative structures more deeply embedded as cultural and social, as well as regulatory structures.  This embedding leverages modern sensibilities about the legitimacy of mass movements  by appealing directly to people through mass mobilization efforts that bypass the state, and the sometimes creaky architecture of state-directed international organizations.  On the other hand, institutionalizing non-state based governance architectures can appear to exacerbate the problems of democratic legitimacy precisely by bypassing the state and its elaborate mechanisms to at least provide a formal connection with the mechanics of representational democracy.   

These simple statements, of course, do not get at, but only suggest, the  complexity of network operation, and its structural coupling with public institutions at the national and international levels, something worth considerably more study, especially by lawyers.  A recent contribution by James Kelly, Multinational Businesses and the Matrix of Human Rights Governance Networks, Engage 12(3) November 22, 2011 is worth considering.  This builds on earlier work:  James Kelley III, James P. Kelly,, The Matrix of Human Rights Governance Networks, Engage, Feb. 2008, at 92.  Kelley describes a hybrid set of interlocking networks of organizations that, together, create a system for the production, management, distribution and embedding of  social norms with both hard and soft regulatory effect.  Here is a portion of the essay that gives a sense of the author's thesis: 

International non-governmental organizations (“NGOs”) and national civil society organizations (“CSOs”) are using a matrix of human rights governance networks to bypass national courts, democracy, and the rule of law to develop “soft law” human rights norms, with which multinational business enterprises will have to comply from the early stages of project research, design, and planning through project completion and beyond. As will be described in this paper, this matrix is not a conspiratorial undertaking pursued by a few like-minded, non-transparent NGOs; rather, it consists of an observable and increasingly institutionalized group of interconnected networks through which NGOs and CSOs realize their human rights governance agenda outside the ordinary democratic process.

The ten human rights governance networks comprising the Matrix include:

1. Advocacy networks: The networks of international human rights activists that articulate and advocate for human rights, including so-called “emerging” economic and social human rights.

2. Research networks: The networks of social scientists and academics that conduct research on how the lack of human rights protection negatively impacts individuals and society.

3. Policy networks: The networks of government officials and other policy makers that discuss and formulate human rights policies.

4. Standards-setting networks: The networks of multilateral international organizations that meet to adopt treaties or declarations listing human rights norms or standards.

5. Interpretive networks: The networks of human rights treaty committees and UN-sanctioned expert committees that interpret the norms and standards contained in human rights treaties and declarations.

6. Explanatory networks: The networks of international organizations and their NGO and CSO partners that explain the human rights interpretations to members of civil society at the local, national, and regional levels.

7. Implementation networks: The networks of national legislatures and government officials that, upon the recommendation of the human rights experts, adopt and implement laws and regulations promoting and protecting human rights.

8. Assessment networks: The networks of NGOs and government officials that encourage the use of human rights impact assessments by legislatures and businesses to measure the potential human rights impact of proposed legislation or products.

9. Enforcement networks: The networks of local, national, and regional courts; government agencies; and human rights treaty committees that decide cases or rule on alleged human rights violations.

10. Funding networks: The networks of governments, multilateral institutions, and private foundations that fund the promotion and protection of human rights by supporting one or more of the other human rights governance networks.

The ten human rights governance networks comprising the Matrix work in successive stages. The advocacy networks generate the idea for an emerging economic right; the research networks conduct the research necessary to support the right; the policy networks design the policy that embodies the right; the standards-setting networks publicly adopt or declare the right as a norm or standard; the interpretive networks determine the nature and scope of the right; the explanatory networks explain the right to the affected parties and their supporters in civil society; the implementation networks adopt the legislation that promotes or protects the right; the assessment networks encourage government and business respect for the right; the enforcement networks penalize those who violate the right; and the funding net works help sustain one or more of the human rights governance networks comprising the Matrix. (From James Kelly, Multinational Businesses and the Matrix of Human Rights Governance Networks, Engage 12(3) November 22, 2011).
Kelley's network descriptive matrix provides an interesting background for considering the efforts to develop a set of public-private efforts at regulation beyond the state in which private and public entities cooperate.   One of the most important of these recent efforts is centered on the development of  the U.N. Guiding Principles on Business and Human Rights: Implementing the United Nations 'Protect, Respect and Remedy' Framework" proposed by UN Special Representative John Ruggie.

(photo (c) Larry Catá Backer)

The recently circulated authoritative gloss to the Guiding Principles is an good example of the use of interlocking networks to deepen coherence in the construction of a regulatory architecture beyond the state in which of a normative-structural framework for the governance of enterprises in the human rights effects of their activities.   United Nations Office of the High Commissioner for Human Rights, The Corporate Responsibility to Protect Human Rights:  An Interpretive Guide (Advance unedited version (November 2011)). Consider the Introduction to the Interpretive Guide through the network matrix lens:

In June 2011, the United Nations Human Rights Council unanimously endorsed the Guiding Principles for Business and Human Rights presented to it by the Special Representative of the UN Secretary-General (SRSG), Professor John Ruggie.

This unprecedented move established the Guiding Principles as the global standard of practice that is now expected of all governments and businesses with regard to business and human rights. While they do not by themselves constitute a legally binding document, the Guiding Principles elaborate on the implications of existing standards and practices for States and businesses and include points covered variously in international and domestic law.

The UN „Protect, Respect and Remedy‟ Framework‟

The UN Guiding Principles are based on six years of work by the former SRSG, including in-depth research; extensive consultations with businesses, governments, civil society organizations, affected individuals and communities, lawyers, investors and other stakeholders; and the practical road-testing of proposals.  * * * * The „Protect, Respect and Remedy‟ Framework was welcomed by the UN High Commissioner for Human Rights. According to the High Commissioner, the Framework set:

“both a new and clear benchmark and represents an important milestone in the evolving understanding of human rights in our societies... Clarity about the baseline expectations of business with regard to human rights is a first important step towards developing appropriate and effective responses to such problems”. [Navanethem Pillay, “The Corporate Responsibility to Respect Human Rights: A Human Rights Milestone”, 2009 International Labour and Social Policy Review. ]

The UN Guiding Principles on Business and Human Rights

The UN Guiding Principles reflect and build upon the three-pillar structure of the „Protect, Respect and Remedy‟ Framework. They comprise 31 Principles, each followed by a brief commentary. Together, the Guiding Principles outline steps for States to foster business respect for human rights; provide a blueprint for companies to manage the risk of adversely impacting human rights; and offer a set of benchmarks for stakeholders to assess business respect for human rights.
The UN Guiding Principles have gained extensive support from businesses and civil society organizations as well as governments. A number of other international and regional organizations have reflected them in their own standards, and more are expected to do so in the months and years to come. Many businesses around the world are already looking at how they can implement the Guiding Principles in their operations.

* * * * *

The first task now is to ensure their effective implementation. This interpretive guide, which was developed in full collaboration with the former Special Representative, is designed to support this process.

The purpose of this Interpretive Guide

This Guide in no way changes or adds to the provisions of the UN Guiding Principles, nor to the expectations that they set for businesses. Its purpose is to provide additional background explanation to the Guiding Principles that could not be included in the UN document itself due to space constraints, but which supports a full understanding of its meaning and intent. The Guide‟s content was the subject of numerous consultations during the six years of Professor Ruggie‟s mandate and was reflected in his many public reports and speeches, but has not previously been gathered together in one place.

The Guide is not a manual that will give those at the operational level in businesses the „answer‟ to exactly how to put the Guiding Principles into practice. Further work will be needed to develop such operational guidance, which will vary depending on sector, operating context and other factors. The UN Working Group on Business and Human Rights will play a central role in this regard. In addition, other organizations with particular sectoral or issue-based focuses are already preparing their own thinking on implementation. As they do so, it is hoped that this Guide will assist them by explaining further the intent behind the Guiding Principles that address the corporate responsibility to respect human rights. As such it is a resource not just for businesses, but also for governments, civil society organizations, investors, lawyers and others who engage with business on these issues.

While this Guide focuses on the corporate responsibility to respect human rights, it in no way reduces the equally important duty of States to protect human rights against abuse by third parties, including business.

* * * *

The status of this Interpretive Guide

The formal commentary provided in the UN Guiding Principles document itself is not reproduced in this Guide, although it is at times quoted. The questions and answers provided here go beyond that commentary to provide additional detail and assistance in understanding the Guiding Principles. As such, they complement the commentary but should in no way be taken to replace or supercede it. This Guide has been prepared by OHCHR with the full support and involvement of Professor. Ruggie.3 As he has commented: “It is impossible to distil six years of research, consultation and reflection into a document the length of the Guiding Principles. This Interpretive Guide is a means to provide some further explanation of those Principles that relate to the corporate responsibility to respect human rights. As work continues to elaborate the implications of this responsibility for different sectors, issues and situations, I hope that this Guide will help ground those efforts soundly and squarely on the original meaning and intent of the Guiding Principles themselves.” (From United Nations Office of the High Commissioner for Human Rights, The Corporate Responsibility to Protect Human Rights:  An Interpretive Guide (Advance unedited version (November 2011))
 Policy coherence in the absence of the state requires coordination among a large group of autonomous actors.  Each of these actors is in turn an abstraction of sorts--organization representing sets of actors--which in turn may themselves be members of multiple organizations interaction with each other.  These interlocking organizations, in constant communication engage in the process of policy formation, elaboration and implementation with reference to their own internal and external constituencies, and their location within collectives of actors operating to similar ends. See, e .g.,    Gunther Teubner, "The Corporate Codes of Multinationals: Company Constitutions Beyond Corporate Governance and Co-Determination," in Conflict of laws and Laws of Conflict in Europe and Beyond: Patterns of Supranational and Transnational Juridification (Rainer Nickel, ed., Oxford: Hart, 2009), discussed in Larry Catá Backer,  Governance Without Government OR Government without a State?: Gunther Teubner on Complications of Umooring Corporate Governance From Corporate Law, Law at the End of the Day, June 25, 2009; Gunther Teubner, A Constitutional Moment? The Logistics of ‘Hit the Bottom’, in After the Catastrophe: Economy, Law and Politics in Times of Crisis (Poul F. Kjaer and Gunther Teubner (eds.), 2010). .