Monday, March 25, 2019

First Principles for a Business and Human Rights Conceptual Framework--A First Stab at Brief Thoughts

Like every young faith system, the emerging fields in law yearn for the structures of orthodoxy for the most practical of all reasons: (1) legitimacy, (2) discipline; (3) predictability; (4) unity; (5) an exogenous basis for the  operation of a priestly caste (experts and knowledge insiders: e.g., lawyers, courts, NGOs, etc.); and (6) the identification of "the enemy" or the taboo. To that end a cosmology is necessary--a means of explaining the dynamic structure and order of the space in which the community exists from the perspective of a received wisdom (logos; from λέγω, légō, literally 'I say'). 

That logos usually emerges around a prolegomena (Προλεγόμεναa, preliminary matters or first things or principles) around which one resolves issues of faith--core premises-- and the legitimate ways of perceiving/ receiving the world. It is on the foundation of those first principles that a community constructs its theology (beliefs and theory systematically developed, today its ideology, from which rules are devised and tested) and its ecclesiology  (once specifically doctrine of the Church, though in contemporary times as well  a doctrine of the apparatus of the government of the community).

Religious and ideological communities have been quite good about the development and management of this conceptual structures around which their communities are incarnated and disciplined. Yet the reflex is also central to the construction of the Lebenswelt (Lifeworld, Edmund Husserl The Crisis of European Sciences and Transcendental Phenomenology (1936)) of legal-normative systems. Civil law through its codes), common law (through its interpretive tropes from Chief Justice Marshal to Chief Justice Rehnquist), and international norm bodies (through their declarations) evidence the strong tradition of anchoring governance systems in first principles.

Human rights in its international manifestations has come a long way to building, if somewhat loosely and with wide variation among its "sects," an orthodoxy built around a prolegomena (the Universal Declaration of Human Rights), and then different schools of theology (built around the wide variety of treaties, conventions, declarations, endorsements, and pronouncements) to which it has sought to attach an ecclesiology built around institution building of a variety of sorts (international and national institutions, MNEs, human rights defenders, NGOs, and other actors)).

However, the prolegomena of business and human rights, its first principles, remains elusive. Critical to that elusiveness of first principles for the business and human rights project is the practice, now increasingly orthodox, of burying issues of first principles within the context of theology and ecclesiology.  The community fights vigorously around the meaning, for example, of the UN Guiding Principles for Business and Human Rights, the role of sustainability in the business and human rights project, the location and practice of remedy, and the like, but without considering the central element of first principles around which these arguments are necessarily constructed. As little attention is paid to the prolegomena of the business and human rights project, arguments about its theology and ecclesiology become ritualized and stagnant.

This post is meant to start a conversation (perhaps only conducted between me and myself, but that, at least is something of a start) about the problematics of business and human rights first principles. For starters I identify six problematic first principles. 


1. Corporate Power. As is common in the field, the focus of the business and human rights enterprise is on the corporation, or corporate enterprise (e.g., OECD Guidelines, UNGP, etc.). That is there is a general tendency to accept the ordering premise of the economic enterprise as an object and subject of law-regulation.  This is both an analytical convenience and an ideological necessity if the business and human rights enterprise is meant to echo the ideological patterns of the law-state system to which most would see it attached. Just as there is an abstract called the state--a political body corporate--so there should be an enterprise, an economic body corporate.  That parallelism makes it possible to see in both an object from which regulation may produced as well as a corporate body onto which responsibility can be imposed.  Our cultures tend to like to incarnate the abstract.  

For some of us, this premise substantially reduced the utility of analysis—especially where the object is, as in the case of some of the discourse, the management of production chains (or the economic activity connected therewith. Just as the state must be disaggregated  in the context of transnational regulatory communities, so the economic enterprise must be re-conceptualized as more than an object.  It might be worth at least nodding in the direction of this new turn in analytical baseline. The economic enterprise might be understood as a system of relationships, or even as a component in the process of production itself (e.g., here). The consequences are felt in several places in the development of the first principles of business and human rights. For example, consider the tensions and efforts that have t be undertaken int he process of conceptualizing an enterprise from out of the disparate autonomous objects that are the subparts of a multinational enterprise. To extend authority across lines which were erected in law as barriers to such efforts, one has to extend (and contort) notions of leverage in the UNGP.  This is  are made necessary because of the focus on the corporate-enterprise (as a coherent legally recognized unit-object) but in the process leverage is re-worked (transformed) beyond recognition.

2. Risk Allocation Versus Strict Obligation. A necessary subtext of the first principles of business and human rights is tort (in Common law jurisdictions and China) or civil responsibility (in civil law states, for example Brazil). This is tort tied to contract in the sense that contract provides the "law" that produces the obligations (and the risk shifting) of tort. See, e.g., Chandler v Cape plc [2012] EWCA Civ 525.

Tort, however, can be understood in two senses here. The first is as ideology—that is as the set of premises that understand human interactions as inherently risky and the role of regulation as the means by which risk is identified and allocated among actors. It is the ideology that makes possible the so-called business case for human rights, and the transformation of the language of human rights in business to the idioms of compliance and risk. It is founded on the premise that one measures the value of a thing against the cost of its loss and that this costing can justify decisions respecting the extent to which such costs might be borne.

Tort can also be understood as the legal structure for risk management and liability for human activity. Where the ideology of tort constructs structures for compliance and identification of risk and the measure of liability, the management of the risk   The resulting cultures of risk allocation and liability valuation have tended to shape the construction of human society and its economic drivers for centuries. At the very end of its risk management spectrum is the notion of strict liability—where the risk allocation ideology reaches its limiting case and becomes something else, the basic premise is that all rights have a value (measured by damages caused by its breach). Tort, then, can in this sense be understood as the risk allocation and identification choices that represent national policy as written into the quite contextually limited mechanisms of law (in domestic legal orders) and the internal regulation of operations (in production chains).

(Pix credit HERE)

But tort is not entirely compatible with the first principles of business and human rights. That occupies a conceptual position at the other end of the spectrum. This is an ideology that speaks in categorical and unwaivable terms. Rights are vestedin individuals, they are indivisible, and the obligations that flow from them are absolute without hierarchy.  These tend to reject the notion of risk identification and allocation as dangerous to the project of protecting particular conditions and of interdicting particular behaviours. The ideological basis of human rights is grounded in public law obligation and strict liability and its politics lies in the identification of behaviours and the allocation of rights and obligations.

The first principles of business and human rights continue to be caught between these first principles.  That is a critical contradiction primarily because it shapes the way in which one approaches all of the basic principles that together would constitute the theology of the field. Most civil society (and some sectors of the public sphere) tend to be invested in the traditional human rights approach—and there is no fault there. However, business and states sometimes tend to approach the construction of regulatory systems from the perspectives of the ideology of torts. There is an argument that might be made that the UNGP put off a choice (and that this accounts for some of the tensions within and among its principles). 

3. The discussion of human rights first principles tend to interwove three quite distinct characterizations of human rights.  These are the three muses, or graces, of business and human rights, whose identity and autonomy are hardly ever given much attention--to the detriment of the development of the first principles. 

(Pix credit here)

The first is human rights as a set of rules. Human rights here merges with its normative framework. Standing alone, that identity (human rights is the sum of the rules of human rights) encourages the movement toward the reduction of human rights to a complex legalization project. Yet at the same time, like all legalization projects, it shifts the gaze of the project from norms to rule and governance framework. It is thus that we progress from an engagement with the UNGPs to furious arguments over international legal instruments for the regulation of business and human rights (for example). This is human rights as the standards for product certification; it is also the space where the UNGP can be conceived as law;  and it is the space form which one conceives of the project from the substantive perspective of contract and the remedial perspective of tort. This is human rights as a manifestation of rules and of data driven governance.

The second is human rights as an ordering framework for institutional culture and regulation.  Here one enters the world of the National Action Plans for business and human rights; one enters as well the construction of policies from which human rights die diligence may be constructed. This is human rights merging with the institutional character of its operationalization modalities.  This is human rights as bureaucracy, as representation, as the process  and as the exercise of discretion.  Thsi is human rights as a manifestation of politics and economics. This is human rights reified as the administrative state (or enterprise).

The third is human rights as a set of societal impulses, a societal movement. This is not straightforward in the sense of referencing the societal sphere identified, for example, in John Ruggie's 2008 Report to the Human Rights Council in his role as SRSG (¶¶ 51-55). It goes instead to the broader notions of cultures and the control of master narratives.  Here one encounters human rights as a cultural rather than as a regulatory phenomenon. This is human rights that ought t inform politics, economics, and their expression in the administrative state.  Most important, this is human rights not as a first principle, but as the ordering principle only within which is politics, economics or law possible. 

The discourse becomes problematic as its adherents interweave these.  The discourse becomes incoherent when that interweaving is not deliberate.

4. The distinction between CSR, business and human rights, and sustainability (broadly conceived) can sometimes be used to flatten the sometimes far more complex interplay between CSR (which is more than the straw person for which purpose it is sometimes used), BHR (as an aspect of the complex development of a HR architecture above, between and within states), and sustainability (a set of overarching principles that continue to sit uncomfortably somewhere between, among or over the other two).

A more troublesome practice, though, seeks to construct (or assumes) that CSR is an obligation embedded in enterprises, constructs business and human rights as a set of rights embedded within the individual, and structures sustainability as a set of aspirational goals among which states and other actors are permitted to choose. That has substantial consequences that remain unexplored especially with respect to the foundations of the contested understanding of the siting of human rights as primarily characterized as obligation or right (e.g., China) and the notions increasingly identified with liberal democracies that tend to site rights within individual holder.  Thus one holds rights, the breach of which  gives rise to remedy which can then trigger responsibility on those who may adversely affect those rights.  Alternatively, one holds responsibility which is triggered when the responsible party interact with the objects of that responsibility (the nature of which is sometimes defined by the state and always with reference to socio-cultural expectations). And yet again one can be bound to shape one's actions by reference to the aspirational goals of sustainability, which may apply in different ways and to different legal effect to individuals and economic entities.

(Pix credit HERE)

5. The identification of power. Much of the human rights first principles discourse speaks around the issue of power. Much of it takes a position with respect to power that reduces it to relations. It rejects the notion of power (and its privileges) as object, that is as property. Yet there is a rich literature emerging out of the U.S. Critical Race Theory that takes the opposite view. Engagement with that literature might be useful.

6. The character of rules and of obligation. The discourse tends to advance strong notions of the ex ante character of human rights regulatory ideology. Yet (beyond certain elements of international law and some constitutional jurisprudence associated with 2nd and 3rd generation state constitutions), the usual presumption of regulatory remedy is ex post. The UNGP, for example, embrace both--centering ex post approaches to the state duty to protect, while advancing notions of ex ante duty (to mitigate, to avoid, etc.) at the core of the corporate responsibility to respect human rights.  The differences are significant and might profit from at least a nod in the direction of their differences and the transformative element in the context of an ex ante grounded system of responsibility norms and the remedial frameworks within which these are then operationalized. It is here that one touches on an area at the borderlands of traditional law and of the emerging data driven systems fo behavior management. 

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