Monday, August 08, 2016

The Architecture of Human Rights at the U.N.: Complexity-Coordination-Fracture

The United Nations recently released a very useful chart of the institutional organization of the U.N. institutions whose work touches on or focuses on the human rights missions  of this international organization and its coordinate parts. 

That chart is worth considering for what it tells us of the institutionalization of human rights within international public organizations that touch on complexity, fracture, fluidity, permeability, and polycentricity. 

1. Complexity. The institutionalization has become a complicated matter within the institutional architecture of the United Nations.  In part this reflects the growing complexity of political and economic life in the international sphere, a complexity that requires reflection in the institutionalization of organizations that are required to engage with it.  On the other hand it suggests an organic growth that has been responsive rather than instrumental.  That is, the institutional growth of the human rights related elements of the United Nations appears to suggest multiple layer cakes of responses to the crises of the moment that then have been given a permanent institutional structure in within the United Nations.  The result is a an organic growth rather than a planned and coherent institutional framework.  On the plus side, it suggests responsiveness and an ability to fairly quickly ration resources toward its engagement.  On the other, that responsiveness has come at a cost. That cost is institutional efficiency and the ability to coordinate across institutional structures, of overlap, and of the possibility of duplication and working at cross purposes.  Ironically, these also tend to the problems of complexity that face many governments.  The picture painted of institutional structures of human rights, then, points to the architecture of bureaucracy in complex states. 

2. Fracture. The institutional strictures of human rights suggest both an internal and external fracture.  Both of these fractures, of course, reflect the foundation fracture in the enterprise of the human rights that divides civil and political rights focusing regimes, on the one hand, from social, economic and cultural rights regimes, on the other. The internal fractures appear to be functional in two respects.  The first touches on substance.  The second touches on function. Three distinct forms of organizations have arisen--U.N. organizations, Treaty bodies and political bodies.  They differ form each other in scope, function, and character. And they encourage a fracture even within substantive focus that produces not just duplication but contestation as well. U.N. organizations provide expertise and some functionality.  But the subject of their expertise may be subject to profound engagement in whole or in part by the political and treaty bodies.  One might assume that the three act as checks on the others.  But the checks also create complexity of the sort that produces a remoteness grounded on systemic expertise (insider versus outsider) that impedes substantial engagement by civil society and states that lack the means or the resources to become insiders in the complex interweaving of subject area policy development among the three bodies. The external fractures then bring this internal complex into contact with states, with regional human rights bodies, and with international private organizations and autonomous bodies. Those interactions may be formal and informal.  They might involve engagement in specific areas or responses, or they involve contestations of policy or authority.

3.  Fluidity.  Fluidity follows from fracture. It suggests that the solidity of formal institutional structures veils a much more fluid functional framework.  It is based on the assumption that governance organizations are impermanent and that there is no need to organize a meta-system around the premise that once established, self-constituted organizations ought to be preserved. Human rights institutional edifices, then, speaks to temporality as an organizational principle. That is clearly evident in the political side of the institutional structures. The special procedures, especially suggest  a dynamic of institutional focus grounded in issues that themselves may be fluid. But at the same time, the drive toward institutionalization also suggests a freezing of fluidity within the structures of institutions that then must themselves ensure their own survival and growth. Fluidity posits an organizational structure flexible enough to ensure appropriate focus on issues as they mature, and then to the reallocation of institutional resources elsewhere as the functional focus changes.  The institution building of the U.N. human rights edifices suggests a permanence that belies fluidity.  Yet at the same time these institutions might also enhance fluidity. That temporality may be reflected in the projects now subsumed within permanent institutions as much as it might have been reflected in impermanent institutions themselves.  Yet, the institutions suggest a permanence to the problems of human rights, organized along functional grounds, whose appearance may change but whose constitution appears set for the long run.  That, itself, ought to give pause. 

4. Permeability.  The institutional structures of human rights suggest the ways in which issue tend to seep between and among the institutional sub-actors that make up the U.N. system itself.  Permeability does not suggest mere penetration, but instead suggests communication and reaction. Permeability follows from the porosity of governance systems that overlap in a global order the territories of which are not measured simply by physical geography.  Just as territory has become porous, the integrity of governance systems is no longer measured by their imperviousness to influence by or projections from other systems. The U.N. human rights system is itself the embodiment of the sort of permeability that can, at its limit, reduce the ability to develop an approach to the implementation of a policy. The structures of the U.N. institutions are indeed designed for permeability--from and among experts, outsiders, states and others.  

5. Polycentricity. And it is in polycenrticity that the functional value of the U.N. system is itself most visible.  These institution produce a tremendous amount of "product." But what if ots nature.  Virtually none of it constitutes law, even that form of mild law that traditionally was subsumed within the category "international law."  Rather norms, declarations, findings, reports, toolkits, principles are the order of the day.  These are institutions that trade more in information and principle than in the forms of traditional law making.  Yet, in the aggregate, these products--multiple, sometimes coordinated, often adverse--tend to have a profound effect on the definition of the baseline within which policy conversations are conducted.  Neither states nor other bodies may be bound oftentimes, but all are drawn into the framework within which these institutions define and frame the issues they consider.  And to that extent, what is produced by these institutions, as irritating and contradictory as it may appear, cannot be ignored. It is in this sense that one can speak of the polycentricity of governance that is produced through a collection of institutions whose own members are usually dedicated to the idea that polycentricity--and the possibility of law beyond the state--can neither be legitimate nor effective within their territories.  And yet it very much is.

What the map of the geography of human rights within the Unite Nations suggests, then, is not government so much as the production of governance.  It is the focus of efforts to privilege discourse and to control discussion; to authoritatively structure conceptualization and discipline outliers.  But is is also a place where the outlier is hard to control, where contestation can seep through and where the possibility of a singular robust authority may be difficult to construct. These contradictions are at once the strength and weakness of this polyglot institution.  It is the realm of the bureaucrat--who like bankers and lawyers tend to like to preserve turf and to avoid risk.  But it is also the square within which civil society may engage in effective mass organization--across the very states that feel most threatened by the possibility of such mass movement.  It is bound up in its history and limited by  capture by blocks of states with some significant political axes to grind. But it can also be virtually the only place where those who are otherwise unable to speak might, if only of ran instant be heard--and more importantly have their voices preserved for another day.  It is  a cover for the organization of modern empire, but also for the transformation of the state.

It is its strongest when it remains fractured and weak--in the conventional sense of wielding a unified power coercively against a community that knows no escape.  As long as one understands these structures as a means to something else, its current organization continues to serve a useful purpose, though not the ones for which it is formally constituted.It makes a mockery of its own self understanding. It can never be independent of the states and other actors which it serves or with which it must interact.  Autonomy is the extent of its "independence.  And that autonomy comes not because it is willed by its state members but by reason of its bureaucracies, expertise and the mandates that may give it a measure of self governance over a jurisdiction that no single state can contravene (buy which a majority of states can overturn). It is hardly complementary--of itself, perhaps--that has been suggested in the paragraphs above. But beyond that the organs of the U.N. do not complement so much as they supplement, gap fill, or contest both the jurisdiction and substantive policies of the states which make up its membership.  And that, in the end, suggests the profundity of the polycentricity inherent in a system that is at once bond to its members, and independence of them within organizational structures that themselves mirror this contradiction and use it to the purpose of advancing some sort of engagement--for good or ill.

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