Tuesday, November 28, 2017

Reflections Day 1 ("What is the continuing relevance of the U.N. Guiding Principles?"): United Nations OHCHR Forum for Business and Human Rights (27-29 November 2017)

As in past years (here, here, here, and here) I am again happy to report on the annual United Nations Forum on Business and Human Rights. The 2017 Program materials evidence an ambitious and comprehensive program that touches on the key elements that frame human rights as a political, legal, economic, and social system. 

This post includes my thoughts on the first day of the U.N. Forum, "What is the continuing relevance of the U.N. Guiding Principles?"

Links to the Reflections for each of the three days of the Forum may be accessed here:
Day 1 "What is the continuing relevance of the U.N. Guiding Principles?";
Day 2 "What is to be Done?";
Day 3: "'Connecting the dots' and 'calls for action: From Estates General to Governance Trade Fair and Back Again.'"

Final Reflections: "Moving Forward to the 7th UN Forum."

In the course of a marvelous opening plenary session, one of the participants sought to frame discussion around the question: "What is the continuing relevance of the U.N. Guiding Principles for Business and Human Rights?" As the discussion proceeded from this I was struck both by its simplicity and profound relevance for many of the interventions of the first day of the Forum. Consciously or not, the question may "reflect the Forum’s spirit of multi-stakeholder engagement and dialogue. It aims to provide high-level and leadership perspectives on the Forum’s theme and key topics."  (opening plenary session).  And, indeed, that comprehensiveness also is revealing for what may eventually be deep structural changes in the position of human rights within that complex ecology of politics, law, economy and society which are at the center of the discussion here. Thus, the first day of the Forum suggested the breadth of its ambition: from "all roads lead to remedy" (the theme of the Working Group 2017 Report; reflections here) to a more comprehensive one--all roads lead to human rights. That movement might well lead to a deeply transformative turn; yet that turn is one for which may might not yet be prepared.

And yet the question itself surprises. To ask the question is to question the very project of business and human rights. It suggests that the management of the human rights effects of economic activity is itself remains an open question--that, indeed, one could answer the question in the negative, the the U.N. Guiding Principles have no relevance.  One would have thought that after the endorsement of the U.N. Guiding Principles for Business and Human Rights, the U.N.'s own apparatus had answered the question definitively. But no sooner had such endorsement been given than consensus appeared to have fractured enough to make the question itself both possible and relevant (my thoughts e.g., here, and here). The issue of the UNGP's as a stage in a sort of historical determinist progress to some inevitable end (that will supersede the UNGPs) became a topic of conversation (e.g., here, here, and here). That end of the UNGPs (or at least its de-centering in the human rights and business universe, was to be evidenced, in much discourse, by the enactment of some sort of "comprehensive" treaty.

Yet, it is also possible that the question was meant to push thinking in an entirely different direction.  That direction might also posit the transitory nature of the UNGP.  Yet the transition would not lead to a treaty but a more profound change in the ordering of human organization. So, what does the first day of the 2017 U.N. Business and Human Rights Forum expose respecting the continuing relevance of the U.N. Guiding Principles? The discussion on the first day of the Forum might provide hints as to the characteristics of that change.

First, the continuing relevance of the UNGP is subsumed within emerging multilateral structural systems within which the UNGP plays a role (e.g., here). That is, the relationship between UNGP as framework and multilateral-multi-stakeholder structures have effectively been inverted.  But that was the initial genius of the UNGP--to dissolve itself within the governance structures within which it was to serve as the underlying master narrative of the governance produced.

Second, the continuing relevance of the UNGP is embedded within the cultural regulatory frameworks of sustainability (e.g., here, and here). One gets a sense of this generally from the way in which the UNGP now serves as the structure within which sustainability activity is now understood, and the language underlying the authority of its forms. This is as evident from the December 2017 action of the Inter-American Commission on Human Rights (finding a human rights violation resulting from an unremediated oil spill in Peru with respect to which the Peruvian state did little (e.g., here) to the initiation of the Climate Action 1000+ Investor Initiative that seeks ot engage companies to improve governance on climate change (e.g., here).

Third, the nature of the relevance of the UNGP is changing, moving away from the conventional and traditional focus on rules to the control of behaviors, performance and performance objectives. As a formal matter human rights (and the UNGP) remain at the center of the discussion of the obligations  of the modern (20th century) regulatory state expressed through law and regulation (here, here, and here, here). But as a functional matter, the UNGP principles have themselves become principles with regulatory objectives embedded within systems of managing social relations, economic activity and political frameworks (e.g., here, and here).  

Fourth, And there is a great irony here, the relevance of the UNGP--for the state and law--is increasingly grounded on the systems of business management (e.g., here, here, and here).  The UNGP's relevance is in its power to transpose business practices from the economic to the political and civil sectors (e.g., here).

Fifth, the shift in the relevance of the UNGPs from regulatory to managerial focus invites a change in the taste for and scope of regulatory objectives.  Managerial regulation seeks a totalizing approach to the regulation of behaviors, and at its limit to the total organization of society-economic transactions and political behavior (e.g., here).

Sixth, That shift toward total organization requires a more fundamental shift, one that is apparent in discursive threads throughout this year's Forum. The shift is grounded in the shifting of the language of power beyond that which has been taking place in this century from the language of politics (the traditional language the law-regulatory state), to economics  (the language of global production and the enterprise (e.g., here, here).  What we see in shadowy form in the Forum is the construction and use of a new language of power, the language of the socio-culture of human rights.

Seventh, the shift in language has a critical consequence to the way in which the UNGP is understood and deployed. The effectiveness of the UNGP moves from efforts to make the political and economic case for human rights  especially around the time of the endorsement of the UNGP (e.g., here) to the centrality of the need to make a human rights case for business, business transactions, and for the state (e.g., here, and here).

Eighth, this reversal in the dialogic construction of the discourse from human rights in economic activity to the expression of human rights in economic activity has an important consequence for situating the relevance of the UNGPs. If everything is a function of or viewed through the lens of human rights,if human rights merges into the background, then human rights may be in danger of losing its substantive character and assumes instead a structural character. That is, human rights can no longer be understood as a set of objectives but rather as the baseline against which the rules and management of human activity must be measured.

Ninth, but if human rights (as framed through the UNGP, for example) is now understood as structural--the baseline and language around which politics, economics and culture are expressed (and against which its borders are constructed) then that raises an important question. That question revolves around where and how specific norms are sourced, developed and implemented. That is, the issue centers on whether human rights loses its normative character by shifting to a structural role. There  is evidence of this tension in the way in which structural human rights and business is sometimes deployed as a slogan--a fetish--without very clear substantive content (something I suggested earlier, here). 

Tenth, though human rights in business may be transformed into the language of politics, business, and society does not necessarily mean that it loses its normative character entirely.  It is easy enough to speak to human rights without content, or within a content so specific to place, production chain, or and sector that it loses any coherence.  That is certainly the case where one speaks to the legally applicable human rights duties of states (though to the great credit of the UNGP, not entirely with respect to the corporate responsibility to respect human rights). Perhaps what one sees emerging in a discursive universe in which human rights supplies the baseline from which justification for human activity is judged, is the move to human rights as a meta-ideology around its core principles (e.g., here).

Eleventh, as a meta-ideology human rights (and more specifically the human rights of economic activity) lacks authoritative content precisely because it has inverted the relationships between human rights and law, politics economics and culture. Where the baseline starting point requires making a human rights case for politics, for law and regulation, for economic activity, for social organization, etc., then core content of human rights, which had previously proceeded from out of politics, economics, law, culture, etc., loses its authority and legitimacy.  Here, at last, one can begin to grasp the core contradiction at the heart of the otherwise incoherent debates about (1) law versus regulation versus social norm, (2) states versus enterprises versus certification agencies as law/rule makers, (3) international law versus domestic law versus international norms versus religious law, and (4)  law and regulation versus managing behavior through rating and ranking; and (5) data and algorithm versus principle and command as a basis for rule systems.   

Twelfth, and thus that meta-ideology into which human rights is transformed has as its foremost consequence the dismantling of traditional hierarchies of political power (the state system) and economic power (the production chain) in favor of a human rights order in which all organized power serves human rights. And thus we get the the fundamental insight of the first day of the U.N. Forum for Business and Human Rights: control over the construction of the specific normative content of human rights (that is the power to identify those clusters of behaviors encompassed within or that constitute the universe of human rights) now becomes the central indicia of political power; control over the management of those behaviors becomes the central indicia of governmental power; and human rights as a structural force is itself inherently indifferent as to such power is exercised by states, enterprises, civil society, or through mass action (e.g., here).  

Thirteenth, that exercise is not a matter of theory but of targeted action.  One must work back from facts to theory, even as those who make facts (and transform theory) deny both.  Contemporary elites target a number of specific targets, several with multiple objectives (beyond human rights). Most prominent are tax evasion and corruption.  The emphasis suggests the power of human rights as an organizing principle and its challenge. With respect to the former, the reconstruction of corruption and tax evasion as a human rights issue points to the transformation of the basis for policy legitimacy  within the construct of human rights.  The same, of course, applies in other areas--sustainability, climate change and environmental degradation for example. With respect to the later the operationalization of a human rights protection against corruption and tax evasion confronts governance orders that are not as easy to manage and order.  Political power and governmental power can now be asserted simultaneously by enterprises and states (and to some degree by civil society), each a feudal overlord of their domain owing fielty only  to the conceptual structures of human rights. In the interactions among states, enterprises and civil groups the nature of operationalization becomes clearer--human rights normativity emerges from the bottom (through the mediation f civil society and mass agitation within the political and economic fields) but it can be crafted as policy and structured as governance only form the top. The reflexive system--from the people to the people--can be understood in Western democracies as popular engagement  and in Marxist Leninist states as the human rights mass line.

Fourteenth, and it is here that the relevance of the UNGP becomes clearer. The three pillar structures of the UNGP delineates the silos within which governance can be crafted and implemented through the state system (the old realm of politics) and through the production chains of globalized economic activity (the old realm of economics) with mass mobilization (civil society power) resident within and between both. In the face of this polycentricity the UNGP offers the structures of multi-stakeholder governance.  The effective result is the building of structures through which representatives of the three domains of human rights--states, enterprises and civil organs can come together to develop a common approach to challenges.  And it is in this confederative role--the fashioning of a legislative and policy organ of human rights governance from states, enterprises and civil organs--that the genius of the UNGP pillar structure becomes evident.   That genius eschews unity in governance, accepts the necessary polycentric operation of managing activities globally, and while accepting that the emerging global governance framework may have no center in its operation (operationalization anarchy), that anarchy can be ordered conceptually through the primacy of the discourse and principles of human rights.

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