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). .