Conference Paper Posted: "Governance Polycentrism--Hierarchy and Order Without Government in Business and Human Rights Regulation"

I am looking forward to participating in a conference, "Contested Collisions," convened by Dr. Kerstin Blome, Prof. Dr. Andreas Fischer-Lescano, Dr. Nora Markard, and Prof. Dr. Stefan Oeter. The conference will be held in Bremen, 10th January 2014,  - 12th January 2014.

(Pix (c) Larry Catá Backer 2014)

The Conference Description provides:

This three-day conference will controversially discuss the concept of "regime collisions." The concept is used to describe the fact that fragmentation into an increasing number of international regimes with overlapping areas of competence can lead to contradictory decisions or mutual obstruction. The first phase of the conference will critically examine the phenomenon of regime collisions from a theoretical perspective. Is this a merely technical conflict of norms, or a competition of societal interest groups for specific goods? Is it best described as a problem of hegemony, as assemblage, as a cloak for North-South conflict? The second phase will look more closely at possible solutions to this phenomenon. Can there be a "meta-collision law", or no? What could be other ways to integrate colliding regimes with one another? How can private regimes be included in such solutions? The third phase will look at case studies to discuss the impact of the different theoretical and practical approaches in different fields.

The Conference is hosted by the Collaborative Research Center 597 "Transformations of the State" through its Project A2 "The Juridification of Dispute Settlement in International Law." The Collaborative Research Center 597 provides a space where "Scholars in political science, law, sociology, economics and communication studies work together to determine if, and precisely how, pressure from globalization and liberalization over the past thirty years have changed the core institutions and functions that define the classical nation state." In its current "third phase (2011-2014) we are now examining how the changes are affecting the supply of the state's normative services such as security, governance, welfare and legitimacy. Are fewer of these services produced or is its quality decreasing?"

The Conference Program may be downloaded HERE.

My contribution is entitled: "Governance Polycentrism--Hierarchy and Order Without Government in Business and Human Rights Regulation."  It has been posted to the Social Science Research Network and may be accessed here.  This post includes the Abstract and Introduction to my conference paper.

Conference: Contested Collisions
Friday 10 – Sunday 12 January 2014
Haus der Wissenschaft, Sandstraße 4/5, Bremen
Collaborative Research Center 597 “Transformations of the State”
Project A2: The Juridification of Dispute Settlement in International Law

Conference Paper:
Governance Polycentrism--Hierarchy and Order Without Government in Business and Human Rights Regulation
Larry Catá Backer[1]

  Abstract: Globalization has produced a growing number of governance regimes beyond the reach of the domestic legal orders of states. These systems sometimes collide when their with overlapping areas of competence lead to contradictory decisions or mutual obstruction. Is it possible to manage these collisions to produce order among colliding systems with no normative center, and if so, what may be the role of law for the solution of collision problems, and how does that role relate to non-legal regimes, what may be the role of non-legal approaches to a solution, and how do they relate to law, and what might concrete solutions look like? The propose of this essay is to consider the issue of collision within one of its most interesting nexus points—in the elaboration of governance frameworks touching on the human rights impacts of economic activity by states, enterprises and individuals. That elaboration produces collisions between the state, international public and private organizations (enterprises and civil society actors), each with their distinct governance regimes. The thesis is that the development of governance regimes for the human rights impacts of economic activity suggests the way in which non-legal approaches play a crucial role in the creation of structures within which the collisions of polycentric governance, its necessary anarchic character, can be managed (but not ordered), and consequently the way in which law (and its principles of hierarchy and unitary systemicity) plays a less hegemonic role, that is, the way in which law has less to contribute toward the governance problem thus posed. The thesis is explored by considering the way in which the management of anarchy and the collision of governance regimes are being attempted through the operationalization of the United Nations Guiding Principles for Business and Human Rights, and the three pillar framework from which it arose (state duty to protect, corporate responsibility to respect, and effective remedies for adverse effects of human rights), and its incorporation into the Organization for Economic Cooperation and Development Guidelines for Multinational Enterprises. Part I considers the structures and premises of the emerging governance framework built into the Guiding Principles, and its points of collision with law based systems. Part II then considers the ramifications of collision, and the possibilities for systemic equilibrium. The emerging framework suggests a constitutional framework within which fracture and polycentric co-existence, of short duration, appear to be emerging as the stable state.

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It has become something of a commonplace to understand that at just the moment when a half millennium of effort devoted to the to construct an impermeable and eternal political system of states—omnipotent internally within their territorial borders and incarnate beings interacting as aggregate persons among a species of similarly constituted beings within a societally ordered community of states[1]—produced instead the framework of its own eclipse.[2] That political moment, when the structures of economic globalization acquired enough of a momentum to produce a reality of economic and social interactions beyond the ability of any single political system to control, produced a space (we argue whether it is political, social, economic, religious, cultural, moral or mixed) from out of which other governance systems have emerged and operate, to the chagrin and despite the opposition of the law-state system and its acolytes.[3] The State and its detritus remains an obsession, especially among lawyers and theorists of governance, even those driven by the dictates of emerging functional realities of practice to reconsider the state system within a larger governance context.[4] Loyalty, here, might well be a necessity of the construct of the lawyer, the judge and legal academic, to the system of which they form an integral part, the passing of which might well reduce their privileged role as seneschals of the law-state system.[5]

Yet even for those who do not dismiss the reality and power of societally constituted regimes, the institutional premises of the old order survive in large measure and a certain nostalgia for reproducing the ancient regime of an orderly and vertically integrated universe constituted under rules produced by Natura or some variant of an Enlightenment deity. It is possible that even the vanguard of the societal constitution movement distrust a heterodox governance system without order or hierarchy.[6] It is also possible that some find it comforting to transpose the premises and habits of law and law-state systems (including its elaborate systems of justifications and legitimacy) onto emerging governance regimes, if only because familiarity makes analysis easier. More pointedly, such transposition might permit an easier disciplining of emerging regimes within the premises of the old.[7]

It is in this context that it is useful to speak to the issue of “regime collisions.”[8] The concept can be used to describe the fact that fragmentation into an increasing number of international regimes with overlapping areas of competence can lead to contradictory decisions or mutual obstruction. For some, given that such regimes are driven by radically different rationalities, this poses more than a technical problem. The problem is the same of that which confronted the political bodies when they sought to craft public international law as an ordering system among otherwise autonomous actors with distinct character and ambition. They argue, for example, that in the absence of a hierarchy of norms, only heterarchic “collision rules” can coordinate parallel action and manage collisions by allocating competences, taking into account the different regime rationales.

I have suggested otherwise, positing that it is necessary to move away from state-focused legal paradigms, redolent with hierarchy and order, and to embrace ἄναρχος, an aggregation of systems without rulers but with an order quite distinctly from the late feudal ism of the law-state system embedded within it.[9] I have previously written[10] that what I call global law, the law of non-state governance systems, can be understood as the systematization of anarchy, as the management of a loosely intertwined universe of autonomous governance frameworks operating dynamically across borders and grounded in functional differentiation among governance communities. Considered in this context, the structure of global law can be understood as an amalgamation of four fundamental characteristics that together define a new order in form that is, in some respects, the antithesis of the orderliness and unity of the law-state system it will displace (though not erase). These four fundamental characteristics—fracture, fluidity, permeability, and polycentricity—comprise the fundamental structure of the disordered orderliness of global governance, which now includes but is not limited by law. These also serve as the structural foundations of its constitutional element, its substantive element, and its process element. Rather than order grounded in public international law, now transformed to serve a wider assemblage of governance actors, disorder premised on a polycentric ecosystem of competing and cooperating systems in constant sometimes friction producing interaction, defines the stability of governance systems in globalization. As a consequence, the problem of societally constituted organisms in a world once populated entirely by states and their creatures operating through the rigidly organized hierarchies of law, may well be the intrusion of law where it is neither necessary nor natural.

The propose of this essay, then, is to consider the issue of collision within one of its most interesting nexus points—in the elaboration of governance frameworks touching on the human rights impacts of economic activity by states, enterprises and individuals. That elaboration produces collisions between the state, international public and private organizations (enterprises and civil society actors), each with their distinct governance regimes. The thesis of this essay follows: the development of governance regimes for the human rights impacts of economic activity suggests the way in which non-legal approaches play a crucial role in the creation of structures within which the collisions of polycentric governance, its necessary character as ἄναρχος, can be managed (but not ordered), and consequently the way in which law (and its principles of hierarchy and unitary systemicity) plays a less hegemonic role, that is, the way in which law has less to contribute toward the governance problem thus posed.

The thesis is explored by considering the way in which the management of anarchy and the collision of governance regimes are being attempted through the operationalization of the United Nations Guiding Principles for Business and Human Rights,[11] and the three pillar framework from which it arose (state duty to protect, corporate responsibility to respect, and effective remedies for adverse effects of human rights),[12] and its incorporation into the Organization for Economic Cooperation and Development Guidelines for Multinational Enterprises.[13] The focus of that effort has been the management of the behavior of enterprises in accordance with international human rights norms. The operationalization of that framework touches on collisions between the governance aspirations of public international organizations, the prerogatives of states, governance structures of the largest global economic enterprises, and the emergence of global civil society, media and other stakeholder communities that have morphed into members of the demoi of shifting governance communities. But rather than order and the privileging of international law, fracture and polycentric co-existence appear to be emerging as the stable state.

Part I considers the structures and premises of the emerging governance framework built into the Guiding Principles, and its points of collision with law based systems. Part II then considers the ramifications of collision, and the possibilities for systemic equilibrium by reference to three questions suggested by the thesis: (1) what may be the role of law for the solution of collision problems, and how does that role relate to non-legal regimes? (2) what may be the role of non-legal approaches to a solution, and how do they relate to law?; and (3) what might concrete solutions look like? Law remains an important element, but no longer the sole ordering principle of a unified system within which rule collisions may be resolved. Non-legal systems built around societally constituted governance organisms, autonomous from each other and from the law system with which they collide, may better serve as the framework for mediating collisions among these constellations of governance orders. The most useful means for providing these collision management structures may be sought within public international organizations that provide an arena within which such collisions may be made predictable and their results more certain. The answers may not be positive for those who still cling to the ideals of the primacy of law. First, law both supports impedes solution to collision problems precisely because, by its nature, it invariably seeks to privilege itself over non-law regimes. Second, the societally constituted autonomous regulatory regimes that can produce increasingly dense networks of jurisprudence with the functional effect of customary law but in the absence of the state is threatened by law, which seeks to subsume societally constituted systems, and the social norms that animate it, within the domestic legal orders of states. Third, the concrete solution may well look like the GP-OECD Guidelines framework itself.

NOTES:

[1] See, e.g., Antony Anghie, Imperialism, Sovereignty and the Making of International Law (Cambridge University Press, 2004).

[2] Eclipse, of course, and not obliteration. See, e.g., Michael Zürn, “Sovereignty and Law in a Denationalised World,” in Rules and Networks: The Legal Culture of Global Business Transactions 39-71 (Richard P. Appelbaum, William L.F. Felstiner and Volkmar Gessner, eds., Hart Publishing 2001).

[3] See, e.g., Richard Falk, Predatory Globalization: A Critique (1999); Noah Sachs, ‘Beyond the Liability Wall: Strengthening Tort Remedies in International Environmental Law’ (2008) 55 University of California Law Review 837, 843.

[4] David Weissbrodt, ‘Keynote Address: International Standard-Setting on the Human Rights Responsibilities of Businesses’ (2008) 26 Berkeley Journal of International Law 373, 384–90.

[5] See, e.g., Larry Catá Backer, Retaining Judicial Authority: A Preliminary Inquiry on the Dominion of Judges, 12 Wm. & Mary Bill Rts. J. 117 (2003)

[6] But see Gralf-Peter Calliess and Peer Zumbasen, Rough Consensus and Running Code: A Theory of Transnational Private Law (Oxford University Press, 2010).

[7] Consider in this light, Philip Alston, ‘The “Not-a-Cat” Syndrome: Can the International Human Rights Regime Accommodate Non-State Actors?’ in Philip Alston (ed) Non-State Actors and Human Rights (2005) 1, 17; Fleur Johns, ‘The Invisibility of the Transnational Corporation: An Analysis of International Law and Legal Theory’ (1994) 19 Melbourne University Law Review 893; Halina Ward, ‘Securing Transnational Corporate Accountability through National Courts: Implications and Policy Options’ (2001) 24 Hastings International and Comparative Law Review 451, 461–2.

[8] See, e.g., Gunther Teubner, Constitutional Fragments: Societal Constitutionalism and Globalization (Oxford: Oxford University Press 2012).

[9] Thus, “what is clear is that the transformation from the monotheism of state worship to the more complex paganism of the modern age of government without the state will surely reshape the relationships between individuals and governance organs.” Larry Catá Backer, “Transnational Constitutions’ Outward Expression of Inward Self-Constitution: The Enforcement of Human Rights by Apple, Inc.,” Indiana Journal of Global Legal Studies 20(2) 805, 879 (2013).

[10] Larry Catá Backer, “The Structural Characteristics of Global Law for the 21st Century: Fracture, Fluidity, Permeability, and Polycentricity,” Tilburg Law Review 17(2):177-199 (2012)

[11] Special Representative of the Secretary-General, Guiding Principles on Business and Human Rights: Implementing the United Nations “Protect, Respect and Remedy” Framework, U.N. Doc. A/HRC/17/31 (Mar. 21, 2011), available at http://www.business-humanrights.org/media/documents/ruggie/ruggie-guiding-principles-21-mar-2011.pdf (by John Ruggie) [hereinafter Guiding Principles or GP]. The GOP were endorsed by the U.N. Human Rights Council in 2011. Human Rights Council Res. 17/4, 17th Sess., July 6, 2011, U.N. Doc. A/HRC/RES/17/4 (July 6, 2011), available at http://daccess-dds-ny.un.org/doc/RESOLUTION/GEN/G11/144/71/PDF/G1114471.pdf?OpenElement.

[12] “In 2008, on completion of his first three-year mandate, the Special Representative presented the “Protect, Respect and Remedy” framework to the Council (A/HRC/8/5). . . . The Council unanimously welcomed the framework. The Council also extended the Special Representative’s mandate by a further three years, with the request that he “operationalize” the framework.” Human Rights Council, Forum on Business and Human Rights, Second session, 3 and 4 December 2013, Background note by the Secretariat A/HRC/FBHR/2013/2 (24 Sept. 2013), ¶ 10.

[13] OECD, Guidelines for Multinational Enterprises (2011) OECD Directorate for Financial and Enterprise Affairs. Available http://www.oecd.org/daf/inv/mne/48004323.pdf. The OECD Guidelines represent “a policy commitment by adhering governments to provide an open and transparent environment for international investment and to encourage the positive contribution multinational enterprises can make to economic and social progress.” Ibid. (“OECD Declaration and Decisions on International Investment and Multinational Enterprises”),