Tuesday, December 02, 2014

The 3rd U.N. Forum on Business and Human Rights--Streaming Live With Thoughts on the Forum as Estates General

The plenary sessions of the 2014 UN Forum on Business and Human Rights, held in Geneva on 2-3 December are being streamed live.

Webcast: Webcast of the Forum (2 and 3 December)
Documentation: Programme
Rules of Procedure
Registration and logistics

Video footage of plenary and UN-led sessions will be available at UN Web TV (some are already available, and the rest will be uploaded during the course of the coming weeks). The official summary report of the event will be made publicly available by February. It will be uploaded on the Forum website upon its completion (please consult http://www.ohchr.org/EN/Issues/Business/Forum/Pages/2014ForumonBusinessandHumanRights.aspx ).

The plenary sessions offered a glimpse of the future of the business of human rights in the international arena. Some thoughts about the 3rd Forum, and where the business of human rights is headed, follow.

The Forum of Business and Human Rights has grown dramatically since its beginnings 3 years ago.  The even is now understood as an important venue for  informal networking among the mass of civil society organizations involved in the business of human rights, and for states and large business enterprises to signal their intentions going forward.  The construct remains medieval, and perhaps justifiably so in a community that is being constructed outside the parameters of state organization: the forum remain an important gathering of a global estates general, a representative body drawn from the three ‘estates’ into which the "kingdom" business of human rights society had been theoretically divided.  But there is no crown in this kingdom; its three estates--business, civil society and states, are given form and manged through the organization of the United Nations, that serves as a legitimating space within which this community can manifest itself.  But these "estates general" are neither institutionalized, nor has its work been routinized. Its components remain highly contested.  That was made clear by the sadly post hoc intervention of indigenous people for a greater institutional role within the "estates general" either as an estate of their own or by the expansion of the project of business and human rights to embrace their agendas. Beyond that this duly constituted estates general remain, in the final instance, dependent on the willingness of the three estates to participate (and fund)  its assembly.And the expression of consent in the form of money (states) or participation (business) may also shape the agenda.

Beyond developing strong networks and relationships among the estates that constitute the governing orders of business an human rights community, the Forum "estates general" has become an body within which global social norms are crafted--or managed--with the object of changing expectations of legitimate conduct, enterprise behaviors in transnational space, and more problematically, within the domestic legal orders of states.  Within this governance standards generating body, influence (sometimes supported by status within the community of business and human rights participants) is the coin of the realm, substituting for the formal law making that is unavailable. But that influence, sometimes supported by substantial normative agendas, cannot compel or discipline the form and shape of the discussion or the norms that the object of engagement.

One of the great casualties of this normative autonomy, ironically enough, has been the object that has constituted this community--the UN Guiding Principles themselves.  There is a sense, increasingly, that the UNGP is becoming something referenced and invoked, in the most general terms, but hardly ever used as a basis for discussion.  The Forum appears no longer interested int he work of elaborating the governance potential inherent in the UNGP as it is in using the UNGP as an excuse to support any number of agendas, without the obligation to tie them to the UNGP project itself.  The idea of the UNGP, rather than its operationalization as governance structures, appears to bee the animating spirit of the third meeting of these estates general. And that is to be regretted, though it may not be surprising. Having worked hard to become the basis for discussion of the range of governance issues that touch on business and human rights, the UNGP now suffers from its success.  People invoke the UNGP in the most general sense--the way one invokes a fetish. It is a fetish both in the sense of an object (one carries around the UNGP as one used to march around with Quotations from Chairman Mao Tse-tung)  regarded with awe as the embodiment of a spirit (Logos) having magical power, and also as an object generating reverence or devotion. But such objects are invoked and revered--but not otherwise used. . . .except perhaps against each other.

Indeed, these great estates sometimes begin to think that they constitute a closed universe in which their ability to affect each other is the principal function of the operatonalization of the UNGP.  So, for example, states continue to declare their willingness to legalize the second pillar responsibility obligations of corporations in session after session while aggressively ignoring any effort to undertake an inventory of their own serendipitous transposition of human rights standards into their own domestic legal orders. Indeed one of the great open wounds of the UNGP process is the unwillingness of states to even describe the extent of their state duty (under the logic of their own constitutional orders) much less to consider coherence in the domestication of international standards. The great irony there, of course, is the willingness of states to commit their corporations to normative standards they sometimes refuse to adopt within their own legal systems. And then they cry loudly about the need for a comprehensive treaty.  

The opening plenary panels of the Forum, "Leadership views on business and human rights" provided a case in point. The UNGP were invoked as the gateway object by the variety of representative speakers. But beyond that the UNDP disappeared within a mass of highly contextual and quite specific agendas that each of these representatives sought to advance, but without much reference to the UNGP.  Much time was spent confirming that the UNGP were indeed important, and that all of the elite participants continued to embrace "it."  Even more time was spent on "making the business case" for the UNGP, a project whose framework was well established between 2006 and 2011. But "making the business case" post UNGP might be taking an odd turn, one that appears quite tolerant of substantial disciplinary lapses. In a sense, it appeared that all one has to do as a member of elite communities with governance power is to declare allegiance to the UNGP, and then under cover of that declaration of allegiance, to put forward whatever sort of program suits. These projects make good press, but they are difficult to transpose and even more difficult to assess and measure. Measurement is coming, of course, but even that remains as anarchic an enterprise as the space within which operate many of the civil society elements behind these efforts.  And all of these efforts, of course, are being undertaken for the benefit of the "masses" --individuals and communities, only some of whom were brought to the estates general, like Indians brought to the Hapsburg Court in Spain or the Tudor Court in England--so that the governors might better see the object of their obligation. 

As a consequence it appears that the UNGP may run the risk of becoming the veil behind which businesses, states and civil society can pursue thair own specific agendas, with no real effort to tie these back to the very specific principles of the UNGP.  That evolution, that transformation of UNGP as a fetish, produces the very real danger that the coherence--regulatory, normative and procedural--at the heart of the UNGP, will be dissipated.  In place of the development of a coherent and coordinated set of legal-social norm systems, a thousand flowers will bloom, and the possibility of effectively obliging states, businesses and civil society to secure individuals and communities in the enjoyment fo their human rights will continue to be a serendipitous accident of the interactions of particular individuals with particular states, enterprises and civil society elements. What will arise, then, will neither resemble system, nor will it serve as a platform for internalizing a coherent set of behavior norms.  Instead it will contribute to the rise of an anarchic and polycentric transnational system in which individual and community protections will depend on the luck of their interactions with particular actors that control the shape and availability of those rights. This is great governance space for governance actors--who survive and thrive within a large global marketplace of governance.  But it has the effect of furthering the obliteration of the individual and affected communities who remain ever more dependent on increasingly power transnational actors to establish, develop, and apply a shifting set of operational norms to the particular context in which they might arise.

So, if one can concede that the foundational object of the Forum "estates general" ought to be the obligation to define (in the case of states) and secure (in the case of states and enterprises) the human rights of individuals through the UNGP framework, then it seems that it is the individual (and vulnerable communities) and not the desires, agendas and institutional power maximizing agendas of states, civil society and enterprises that ought to form the central focus of the discussion centering on operationalizing the UNGP.  And the principles of the UNGP, in turn, should themselves serve as the fundamental object  of the work of states, enterprises and civil society in the service of the individual who is--however abstracted by the logic of globalization--still the raison d'etre of this entire enterprise. And yet, having abstracted the object of the business and human rights project, having stripped them of their individuality and reduced them to objects, to vessels of aggregated conditions and characteristics, it now becomes impossible for these objects of the enterprise of UNGP governance to effectively speak for themselves within the assemblies constituted for their protection.

That is especially the case within the Forum "estates general." Perhaps the structures of the UNGP make effective participation by individuals institutionally impossible.  Certainly beyond the logistical problem, there is the problem of institutional culture.  Participation in elite governance structures, especially in the transnational sphere requires a certain competence in the language of discourse, the rules of interpersonal engagement and the boundaries within which discussion may occur and action taken.  It is impossible to expect the internationalization of these sometimes subtle and complex rules of individuals who are at the bottom of social, cultural, economic and political hierarchies. But beyond that, the representational nature of international discourse--all "individuals" in the transnational sphere are incarnated abstractions (states, enterprises and civil society) that are themselves meant to be representative organs.

These "objects" of the business and human rights projects, individuals and vulnerable communities, however, sit in an odd position in that respect.  On the one hand individuals and vulnerable communities are understood to be represented by states (in accordance with their constitutional and sovereign obligations under principles of mass democracy).  On the other, effective representation of individuals is increasingly the object of civil society actors.  In some respects, enterprises also represent individuals--the investor and consumer communities on whom they remain entirely dependent for their existence. But in all three cases there may well be significant failures of representation. At the international level states may feel obliged to further the undifferentiated interests of their governments, as a result fo which individuals and their needs may be understood solely as matters of internal concern.  Civil society may advocate for but may not represent individuals.  There is a significant difference of course.  The former suggests a hierarchical relationship between civil society advocate and the objects of their activity. It may be institutionally necessary for the maximization of the welfare of the civil society institution in the world sin which they operate but it tends to obliterate the individual  except as data input for policy. The later suggests a deeper and more horizontal fiduciary relationship. And enterprises, of course, are obligated to represent their shareholders over other stakeholders.  Individuals, like components and raw materials, are viewed as factors of production, and corporate interest must be bent to the higher project of maximizing the utility of these factors in the production of wealth for shareholders.

What that leaves, then, in lieu of representation of the live bodies of individuals, is the product of the individual abstraction process that has been the  consequence of globalized governance frameworks; it leaves data as the principal basis through which individuals and vulnerable communities may be represented within elite fora like the Forum "estate general".  If we must accept the abstraction of the individual, and if we must continue to adhere to principles of democratic representation in the construction of legal and social norms, and if we adhere to the principle that the individual (and the vulnerable community) sits at the center of the UNGP project, then individuals can achieve effective representation only through their aggregated presence and the aggregated effects and failures of elite conduct on securing their rights.

It follows that data becomes the individual in the halls of the transnational governance.

This has important implications for the work of the Working Group, as well as for the normative foundations of the UNGP as well.  Among the most important--the functions of transparency, of monitoring and of reporting, especially though not necessarily exclusively by state, assumes a character not merely as a technique, but as the legitimating basis for any engagement with the UNGP.  Yet it is that very legitimating process that is notable by its absence from the agendas of states, as busy as they are now building those large documents denominated National Action Plans (on NAPs HERE).  And it should be.  Neither states, nor business nor civil society will have any inkling of the character and desires, the lived situation of the objects of the enterprise of human rights in the absence of the data necessary to incarnate these disaggregated individuals and vulnerable communities.  The application of the UNGP, much less the governance rules of domestic legal orders or international social norms becomes little more than reflections of the desires and values of elites, and a failure of deep legitimating structures of norm creation in the absence of deep knowledge of the conditions (as a going matter) of the objects of the all of this "good work."  This requires devoting substantial efforts to the hard task of representing them as they are, and doing so in the way in which these individuals become most accessible--through  the data necessary to understand the conditions, values, desires and objectives of the groups to which states, business and civil society are obliged in the matter of human rights.

But data is precisely what is notable by its absence from the discussions and politics of the Forum estates general.  John Ruggie noted wisely in his 2006 Report that one can (to borrow a phrase form the Chinese) only come to truth from facts.  Yet, it is those facts, that data, that now no longer appears to have a significant enough space in these fora.  That is regrettable and it is to be hoped that the next UN Forum on Business and Human Rights will focus on the individual and the generation of sound data for that purpose.

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