This post includes reflections on the 2nd day of the Forum, "What is to be done?".
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."
To that end, the multi-stakeholder approach to human rights governance produces two distinct trends. The first involves the organization of authority structures among the three principal classes of power holders--states, enterprises and societal forces. The second involves the construction of arrangements--institutional and social-- for power sharing among these three principal classes. Critical to this development is the acceleration of the trends toward the governmentalizaiton of enterprises, the privatization of states (e.g., here, here, and here), and the organization of the masses within and through civil society communities (e.g., here).
All of these actors, intellectual and institutional—our keepers of political, economic, intellectual, cultural and religious order—of which we form a part, have come to see in transnational legal orders, global governance, and global governance networks, both threat and opportunity. Each means to use some variation of an orthodox approach to the transnational or the global to project its power externally and to enhance its authority internally. And all mean to use their power—over ideas or practice—to resist the transformation of known or practiced reality in ways that undermine their place within systems in which they serve as the center. (here, p. 3).The end result is the construction of a system that can make use of traditional methodologies of governance, as well as emerging methods (big data, management, rankings, etc.) for the management of society in this emerging historical stage of human rights based globalized governance orders that respects the forms of old power holders even as it changes their "jurisdictions" and assertions of power. The Forum provides an important site for the development of both and for their deployment to move the project of refraining social organization through a human rights lens.
So, what is to be done? First a set of institutional structures must be developed through which the new human rights centered governance may be implemented. The Forum is itself one such platform for that construction and its work down chains of power and responsibility. Though the Forum bills itself as merely a platform for multi-stakeholder dialogue (e.g., here), it serves a far more important purpose--not dialog but also structure. It provides the space where the organization of authority structures among states, enterprises and social organizations can be developed and its structures refined. Leading states producing governance frameworks within which state power can be asserted in the new human rights centered environment provided both guidance and revealed the structure of authority among states (e.g. Case study: lessons from an NCP case). Leading enterprises produced information about their evolving managerial governance modalities compatible with both the new normative regime and coupled with collaboration with states and social organs (Part 1: Addressing access to remedy in the digital age: Corporate misconduct in sharing and processing personal data; Part 2: The proposal for a ‘Digital Geneva Convention’ – Implications for human rights). Leading enterprises also suggested the ways in which they are driving big data management as a substitute or supplement to traditional regulatory modes (Part 1: Are emerging technology innovations driving better access to remedy in global supply chains?) int tandem with leading elements of civil society (Part 2: Remedy against the machine), in parallel with efforts of some leading states (Human rights due diligence in investment and supply chains of Chinese business). Leading enterprise and civil society organs evidenced collaborative data management to better serve a common population (Part 1: How to integrate voices of the affected communities? Part 2: Settlement agreements and international standards on right to effective remedy). Collaboration in National Action Plans was also taught (Part 3: Multi-stakeholder dialogue – How to make NAPs work in improving access to remedy?).
Hierarchy was very much in the air--as the communities of enterprises, of states, and of civil society order themselves into vertical status arrangements through which the vanguard of each may take a leading role in developing and imposing their respective roles. That is necessary, of course, to discipline and institutionalize the tripartite arrangement that is human rights based multi-stakeholder governance. Enterprise discipline was discussed (e.g., Part 1: Access to remedy in global governance frameworks: new developments and building further convergence; Part 2: How can MNEs use their leverage to help enable remediation by their business partners?). State discipline was explored as well (Part 1: Increasing the effectiveness of domestic public law regimes; Part 2: The life cycle of a criminal prosecution: Overcoming challenges and increasing accountability for cross-border corporate human rights crimes). Lessons and innovation was provided for regions (Moving forward with NAPs and implementing Pillar III in Southeast Asia; )
So, again what is to be done? As John Ruggie recently noted, what is missing from conventional debates about governance "is a current and systematic political analysis of the multinational enterprise in the context of global governance. Such a portrayal seems essential for providing perspective and guidance to what both voluntarism and binding treaty advocates can hope to achieve, and how. (Ruggie, "Multinationals as Global Institution," p 1). "The Working Group focused on the systemic objectives of the remedial focus of the 2017 Forum.
First, there is a need for both states and businesses to “walk the talk” on realizing effective remedies, and ensuring that rights-holders as well as human rights defenders do not get victimized in the process of seeking remedies. Second, as various efforts and actors chart their own paths and propose solutions to address existing barriers to remedies, there is a need to avoid “fragmentation” and ensure alignment between diverse mechanisms and efforts. In this regard, there are a large number of efforts focused on remedy and access to justice that are not necessarily labelled as business and human rights, but are still very relevant. Third, there is a need to overcome the “trust deficit” amongst diverse actors which hinders dialogue and collaborative problem-solving among governments, civil society, businesses and victims about how to realize the third pillar of the Guiding Principles. The 2017 Forum seeks to be a positive force in overcoming these and other challenges in realizing effective remedies. (Reflections on the theme of the 2017 Forum on Business and Human Rights Launch of the 2017 UN Forum blog series).
Gatekeepers remain as critical to human rights based governance as they were to those founded on law or economics, or., for that matter, religion. Lawyer training and the development of vanguard leadership arrangements were also stressed. Lawyers could be trained to serve the societal actors in multi-stakeholder governance (e.g., How lawyers can help communities access remedy; Access to remedy: exploring a global network of pro bono lawyers), and they could serve the enterprise as well (Business lawyers, litigation and corporate human rights impacts (role play); Legal counsel, disputes and respect for rights). Lawyer training in aid of the state duty might be something to consider for later Forums. The role of other gatekeepers, especially accountants would also serve the new model well.
And yet again, "What is to be done?". In all of these expressions of the new modalities of governance two things were made clear. The first was the identification of leading enterprise, civil society and state institutions who have been recognized as the vanguard leaders of change. Who are the vanguard? It is easy enough to begin to get a sense from a listing of those chosen to lead official discussion in the Forum. The Forum provides recognition, to be sure, and a space for new voices to emerge. But that recognition, and the entry of new voices, are also inherently political acts. And it is to the international apparatus, and the communities of actors that make up the vanguard of the human rights governance framework, that this task has been taken. In a later post I will provide data suggesting the networks of leading voices among states, among enterprises and among civil society. The second was to illustrate the expectations of the vanguard elements in the construction and institutionalization of collaborative (multi-stakeholder) governance models based on the fundamental premise that requires a human rights justification for economic activity). This Forum, like those before it, are full of teaching moments, and disciplinary instruction. That is among its more important elements.
But is this necessary? In a simple world, the mechanics of institutional order ought to be easily accessible down the power chain. Yet ours has not been a simple world for a very long time. What the Forum confirms, and what those involved in the institutionalization of the human rights structuring of social order, is that the development of the new structures of human rights based governance orders engenders complexity up and down power chains. More importantly, it adds complexity by multiplying the number of governance hierarchies. Where once politics spoke to hierarchies centered on the state, and where globalization spoke to an additional hierarchy centered on the enterprise, human rights regimes speak to three hierarchies including states, enterprises and civil organizations (including the institutional forms of religion). This double hierarchy produces the layered and polycentric complexity that produces an ordering without a center--an anarchos--that requires the institution of the Forum and similar events, that is centered on the mechanisms of the multi-stakeholder initiative, as a means of bringing coherence, ordering, and discipline, without the single center of prior global ordering systems. It is in this sense that the Forum serves to solidify emerging global "law" structures (e.g., here) without imposing a unitary global law (as these terms were understood within the ideology of the state system).
The only "thing" that remains stable and simple are the objects of all of this regulatory effort. It is to their care and management that the great hierarchies of state, enterprise and societal organization are directed. The "markets for management" that are produced as a result are as much an effort to speak to the construction of polycentric system, to enhance systemic integrity and "buy in" from the three governance communities (enhancing complexity at the organizational and operational level) and to pacify the objects of all of this effort--individuals and communities that might suffer human rights wrongs. This double consequence--complexity at the operational level, passivity at the level of the recipient populations, marks the essence of the state and non state grievance mechanisms whose construction and operation were the focus of the 6th Forum (e.g., Operationalizing corporate respect for human rights:how far have we come?; Part 3: Women workers in global supply chains: operational-level grievance mechanisms and access to remedy). And this is what may be the most valuable insight for the 2nd day of the UN Forum: that, in the end, the great consequence of the system building that represents the finest achievement of the reconception of governance principles founded on human rights, communal and individual dignity, at the same time detaches the individual from the institutions designed to help them. And in that consequence, the emerging system will begin to resemble those that came before it (e.g., Part 2: Do operational-level grievance mechanisms in the extractive industries work? Companies’ and stakeholder perspectives).