Thursday, September 25, 2014

New Paper Posted: "From Guiding Principles to Interpretive Organizations: Developing a Framework for Applying the UNGPs to Disputes that Institutionalizes the Advocacy Role of Civil Society"

(Pix (c) Larry Catá Backer 2014)

I have been  considering the important issues that face international actors--states, civil society and enterprises, as the UN Guiding Principles for Business and Human Rights (2011) evolves.   See HERE, HERE, and HERE.  I have been particularly concerned with what I have come to consider the part of the Guiding Principles that might benefit from more sustained attention--the so-called 3rd remedial rights pillar of the Guiding Principles.   

I am coming to believe that just as the first pillar focuses on the state and its duty to protect, and the second pillar focuses on enterprises and their responsibility to respect human rights, so the third pillar ought to focus on the individual, and civil society and their  role (in their representative capacity).  That focus ought to recognize individuals  both as object of state duty and enterprise responsibility, but more importantly, as actors in control of their role in the remedial processes, which they ought to have a hand in shaping.  It ought, as well, to recognize civil society actors in their critical institutional roles as advocates and monitors of the system of business and human rights. Civil society is central to actualizing the stakeholder roles of individuals in their participation in the evolution of the Guiding Principles and in their efforts to invoke the systems for the protection of the rights of individuals and to secure compliance by states of their duty to protect, and by enterprises of their responsibility to protect human rights. But this re-focus requires the establishment of more robust mechanics that might be used to develop those webs of interpretive opinion fundamental to the deepening of the Guiding Principles in their application to the contextually driven activities they were meant to help guide.

The abstract follows with links to the essay.

From Guiding Principles to Interpretive Organizations: Developing a Framework for Applying the UNGPs to Disputes that Institutionalizes the Advocacy Role of Civil Society

Larry Catá Backer


Global human rights NGOs evidence the power and temptations of the great normative institutional forces that affect the governance projects of transnational society in the early 21st century. These forces—(1) the drive for order and rationality even within emerging polycentric orders beyond the state, and (2) the transformation of the individual within this polycentric universe from singular being to disembodied abstraction made flesh in the body of civil society—are irresistible. The chapter’s thesis is this: the logic of emerging meta-governance points to the need to establish a central mechanism for the interpretation of transnational normative governance instruments and particularly the United Nations Guiding Principles for Business and Human Rights (UNGPs), and the logic of emerging mass governance principles points to the need to vest representative civil society organizations with the authority to bring cases and advocate before such an interpretive body. Movements to develop comprehensive treaty structures pose a threat to the establishment of a workable transnational order compatible with the realities of contemporary governance. This chapter considers both the challenges of the arguments for the institutionalization of NGOs within the normative framework of the UNGPs and the strengths of their critique of the Working Group on human rights and transnational corporations and other business enterprises (WG) for missed opportunities. Two of these opportunities, to date ignored, are worthy of serious development. The first is a facility for delivering interpretations of the GPs whether or not deemed binding by state or enterprise instrumentalities at the international level. The second, drawing from the first, would incorporate civil society as a key representative of individuals seeking an interpretation of the INGPs in particular contexts. It follows that the application-interpretation facility requires not just the establishment not just of an institutional framework for providing a means of hearing specific complaints, but in in which individuals could bring these complaints through representative civil society for determination of the application of the GPs in context. The object is to more fully develop the UNGP’s remedial third pillar through the creation of an internationally based autonomous source of process and governance that raises the stakeholder status of individuals, now represented by a civil society sector under the third pillar that states enjoy under the first pillar and enterprises enjoy under the second. The way to that goal requires substantial development, but its value appears clear. A later version to be published in Business and Human Rights: Beyond the End of the Beginning (César Rodríguez-Garavito, ed., forthcoming 2015).

Number of Pages in PDF File: 11

Keywords: human rights, civil society, multinational corporations, CSR, Guiding Principles, OECD

JEL Classification: K33, M14, O19

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