Saturday, December 02, 2017

Reflections Day 2 ("What is to be Done?"): United Nations OHCHR Forum for Business and Human Rights (27-29 November 2017)

(Pix © Larry Catá Backer 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 provide the background and a marvelous source of materials around the activities of the Forum.

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."

In my reflections on the fist day of the Forum, "What is the continuing relevance of the U.N. Guiding Principles?" I suggested the contours of a substantial transformation in the way in which the business and human rights project was beginning to be manifested. Six years into the project represented by the UN Business and Human Rights Forum, that project, self described as "global platform for yearly stock-taking and lesson-sharing on efforts to move the UN Guiding Principles on Business and Human Rights from paper to practice," the Forum itself manifested a move away from a focus on the human rights effects of economic activity to a discussion grounded in the economic manifestation of human rights. This fundamental development of ideas implicit in the UNGP have now begun to reshape the way in which the relationship between human rights and law, politics, economics culture (and might it also be suggested, religion) is understood.

This inversion of the traditional discourse has a profound effect not only on discourse, but on the way business, states and civil society understand the hierarchy of values within which the principles that define law, politics, social norms and culture must be understood. But it is little understood, precisely because all stakeholders continue to use the language of the old framework to speak to and through the new.  That is, stakeholders continue to speak as if the discourse of human rights were founded on the supremacy of law, or of politics, or of the state, or of enterprises, or of markets or of religion, when what they have managed is the inversion of that functional equation.  As the panels of the first day unfolded, the work of the first six (6) years of the Forum has become to bear fruit--many of the speakers, unconsciously for the most part, have begun to speak of  law, of economics, of society, of the state and of religion as founded on the supremacy of human rights. That is the ultimate relevance of the UNGPS--its has provided a principled way of inverting the old discourse and premises of social organization (law, politics, economics, religion) through which human rights was premised into a discourse in which social organization is itself premised on the foundational principles of human rights.  And that changes everything.  

To those who scuff I might suggest that the continued and increasingly irrelevant resort to the old organizing premises of law, of politics, of economics, of religion, will become increasingly difficult to square with the analytics and premises through which social organizations are now beginning to function.  While they continue to cling to systemic orientations that have had their day and are now done, states, enterprises, religion and social organizations have already begun to reframe their basis for organization, for analytics, for governance around the fundamental premise that each proceeds from out of and is ultimately bound by the normative frameworks of human rights.  That applies in equal measure to Marxist Leninist states which are now moving toward a new stage of history that focuses on constructing a Socialist society that challenges the new contradiction of inequality (here, here, here and here), to enterprises (e.g., here), religions (e.g., here), and to states built on democratic and markets principles.  

If, indeed, the Forum program is more clearly conceptualizing regulatory space as a function of human rights baselines, if stakeholder legitimacy is a function of human rights norms, then a consequential issue arises--how is this to be managed? Under conventional approaches human rights is managed through law, politics, economics, society, and religion.  Human rights is an input (values) and outcome (protection of the objects of human rights).  But where law, economics, politics,  society and religion are managed through human rights, then a different model is required. It is in that search for a new model, undertaken organically, one panel at a time, that the Forum serves to provide a glimpse of power relations grounded in human rights that are emerging.

What the Forum suggests, through the evidence of its own organization crystallized over the last 6 years,  is that in place of the silos of law (rules), economics (markets), politics (states), society (ethics), and religion (morals), the organizations that represent those centers of power are coming together to develop the new methodologies of human rights based human activity (including but not limited to isolated economic activity).  But is it possible to discern organizational conceptions form out of this six year organic and functional movement?  Or, to borrow a famous phrase from Lenin, uttered at a similar moment of structural change a little over a century ago--What is to be done?  (Vladimir Lenin, What is to be Done?: Burning Questions of Our Movement  (New York International Publishers 1929) (1902) available Marxists Internet Archive.”).

So, what is to be done? The international community has begun to provide an answer, one expressed quite remarkably at the 6th Forum: through the construction of systems of multi´stakeholder initiatives, those organs of power that derived their authority from systems of law., politics, economics, society and religion, have come together to recenter their authority in and through the lens of human rights.  In the process they have created--not a class of professional revolutionaries (the answer Lenin gave to the question he posed) but a class of governance organs through which traditional elites may reconstitute and eveolve the relations to power.  Governance through human rights requires a structure and a system like all societal organizing systems that came before it.  That system, i turn, is built on the allocation of power through hierarchy, and the allocation of authority to manage meaning and implementation through the relations among key actors in the organizing system.  What the Forum has begun to evidence--and what the genius of the UNGPs themselves sought to promote through its three pillar structure--was the necessity to amalgamate political, economic and social power in a new alignment, one which changed the premises of authority but retained its sources.  To this end, the multi-stakeholder framework provides the ideal vehicle for the preservation of power among traditional elites but its realignment in the face of both globalization and of the restructuring of its discourse.

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).
Yet that focus extends well beyond the narrow issue of remedy to the construction of the entire system of governance grounded in human rights (e.g., UNGPs in Colombia: remediation as a tool in peacebuilding; UN corporate standards of conduct on tackling discrimination against LGBTI: bringing an LGBTI “lens” to the UNGPs). A number of examples were offered.  One around the National Contact Point process producing a collaborative governance and remediation management through negotiations among a state, an enterprise and civil society organs for the benefit of aggrieved individuals (e.g. Case study: lessons from an NCP case).  Another suggested structures for managing sustainable development goals into governance/management strategies (UN Global Compact Local Network experiences: implementing the UNGPs and human rights due diligence to achieve the SDGs). And an important one was centered on the collaboration of states, enterprises and civil society in creating a governance order for managing operation level compliance with human rights expectations of economic activity (Part 1: Banks and remedy under the Dutch banking sector agreement;  Part 2: Public -private partnerships for effective remedy: a case study on human trafficking). The protection of human rights defenders also provides a space within which a collaborative governance framework may be constructed (Remedying, redressing and preventing attacks against human rights defenders working on business and human rights). And lastly, new legislative models tend to governmentalize enterprises and enlist civil society in ways that reflect a shared governance made possible under the premises of human rights framing (Implementing the UNGPs through government policy and regulation – Trends and case studies).

 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).

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