One of the most interesting elements of the pandemic has been the way in which it is crystallizing the governance cultures within which key outside stakeholders, civil society mostly, engage with the responsibilities and ambitions of regulatory bodies--states, international organizations, business, and religion. These cultures tend to center increasingly in two elements (e.g., Unpacking Accountability in Business and Human Rights). The first and well understood, is accountability. But accountability in this context suggests two elements. The first touches on accounting in the sense of evaluation. The second touches on accountability as the task of constructing the metrics against which the conduct of those held to account are measures, and thus measured, judged.
Together these elements produce a tendency toward the construction of stakeholder as censor, though without the powers of the holders of that office during the time of the Roman Republic (e.g., the magisterial Jaakko Suolahti (1963) "The
Roman Censors: A Study on Social Structure." Annales Academiae
Scientiarum Fennicae, ser. B, tom. 117). Still, the basic functions--to quantify and identify, to protect the moral values of the social order, and to bear responsibility for public works and finances (moral and financial corruption), continues to define the function of civil society, and to drive their work. More importantly, art least as a matter of political culture, the historical wisps of the old office might also produce a sort of legitimization of those who undertake the work of the old Republican censors, even in the absence of the ancient formal framework that vested these officials with political power legally enforced.
The organizing language of accountability has shifted evolved over the last century. It has shifted from a focus on labor in the wake of the Bolshevik Revolution, to a focus on development in the wake of the decolonization trajectories after 1945, to the language of human rights after the collapse of the Soviet Union and the triumph of economic globalization, and now to a focus on sustainability and climate change. In the course of these changes the character of the stakeholder has changed as well, though the relationship with institutions to be held to account has changed much less. More importantly, the technologies now available have substantially augmented their influence even if it has done little to change the fundamental character of the "office" that these institutional elements--simultaneously outside and inside the functioning of political-economic-societal power--occupy.
Pandemic has provided a marvelous space within which these characteristics can be observed, and their effectiveness measures; within which the organization of stakeholder power can be identified and measured, and its connection to the objects of accounting may be better understood. It is in this context that recent statement by powerful elements of civil society respecting the accounting to which their objects will be held become more important.
This post includes two recent examples along with brief comments. The first is a set of three inter-related joint statements (press release here) issued 14 May 2020, addressed to (1) governments, (2) business, and (3) investor communities delivered by the International Corporate Accountability Roundtable (ICAR), along with over 30 partner organizations, calling on governments, businesses, and investors to respond to Covid-19 related challenges consistent with their environmental and human rights obligations and responsibilities. This speaks to the obligations of the normative obligations of key actors expressed as policy compliance with which can be measured and accounted. The second is the Joint civil society statement: States use of digital surveillance technologies to fight pandemic must respect human rights (2 April 2020) delivered by Amnesty International, to which more than 100 additional civil society groups signed on. This speaks to the normative effects which decisions about the forms of governance may take--in this instance the power of surveillance as a normative concept and as a technology fueled method.
Both efforts are worth reading in their own right, not just for the substance of the statements, but for what they tell us about the evolving role of civil society in the shadow of pandemic, and the language of accountability both in the construction of normative baselines and in the approaches to measuring conduct against that baseline.
The role of the Censor is a venerable one in the West. At least the ideal of the role of the Censor--they were to account for the citizenry and ensure that the taxonomy of society and politics was both respected and accurately memorialized. They presided over the ultimate ritual of accountability, the lustrum, the ritual cleansing at the state at the end of their terms. Periodicity, closure, and purification are at the center of the ritual that marked the good ordering of the social, political and economic order from time to time (Cf, Bernadette Liou-Gille, "Le lustrum : périodicité et durée." Latomos 60(3): 573-602 (2001)). In Europe, especially, the lustrum has been reduced to the time interval that separated one lustrum from the next (e.g., 5 years). And the ideal of the Censor (D.S. Levene, "Sallust's Catiline and Cato the Censor," Classical Quarterly 50(1):170-191 (2009)) has become its own perversion--reduced first to describe officials charged with ensuring that works were free of immorality or heresy, and more generally of the character of such an examiner--a rigid moralist, or an officious judge of conduct. The connection with accounting remained, but reduced to a dimension increasingly rejected by Western society as abhorrent to its ideals emerging from the Enlightenment (famously in Dostoevsky, Brothers Karamazov (Constance Garnett, trans.: NY Lowell Press) Bk V, Chp V, The Grand Inquisitor)).
These idealized ritualizations of the repeating patterns necessary for the disciplining of human ordering, even when honored more in form than in fact, continues to haunt Western civilization. To some extent it has become deeply embedded in the ritual cultures of globalization. By that I mean, the behavior and structural pattern frameworks that are understood as the rituals of compliance-based accountability that increasingly serves as the foundations of collective human life (e.g., Unpacking Accountability in Business and Human Rights). And indeed, the old meanings, and the old forms have arisen again, in a
sense, The impulse to serve as both the arbiter of morals and religious
(now ethical) sensibilities, the imperative to account for conformity to
such morals and ethics, and the development of institutions now to
serve that function remain strong. In the early 21st century, those
functions have to some extent been appropriated by civil society in at
least one area of human organization--in the context of the
moral-ethical dimensions of economic activity.
Civil society has taken to this role with a vengeance. They fill a crucial governance gap in structures of regulation that bridge the public and private, and the national and transnational ("Economic Globalization and the Rise of Efficient Systems of Global Private Lawmaking: Wal-Mart as Global Legislator0" (pp. 18-20); "Multinational Corporations as Objects and Sources of Transnational Regulation" (pp. 519-520)). But civil society is no Roman censor. Theirs is not an antiquarian project. Though they serve as the great transnational moralists, they also participate in the development of moral--of the normative principles that serve as the basis for judging conduct. Their tools are law and norms; their instruments are the great public and private institutions that dominate globalization--the enterprise and the state (BACKER TULANE). Likewise, though they no longer serve as the source of public works, they develop, and to the extent of their abilities, monitor and bring to account those who do. Their tool is disclosure and the surveillance necessary to make it. But those tools are also normative contingent, especially when they are themselves instruments of state or enterprise power. And there is no longer a lustrum--but the periodic rituals of cleansing have now been embedded into the periodicity of acco0unting. It's great rituals revolve around transparency and its objects--the annual compliance reporting, from those demanded by the state (e.g., 2019 UK annual report on modern slavery) to those required of investors and their institutions.
The first was the transfer of authority for morals from the religious to the political sphere, and from the religious priest to the priestly politician (and their administrator apparatus). This started centuries ago, certainly, but reached a point by the beginning of this century in which the alignment of morals, norms, and politics became more perfectly aligned and centered among those cliques to which governance authority was exercised.
The second was the legalization of the administration of these norm systems. This also started long ago and its principal aims was not directed toward civil society, but rather toward the management of violence and thus to the preservation of productive forces to be better exploited by those governing cliques among whom war could be reduced to battles over control of productivity ("The Fuhrer Principle of International Law: Individual Responsibility and Collective Punishment"). Together these produced both the forms through which and the necessary space for institutional representation of segments of the managed masses.
The third was the necessary transformation of the language of norms from that of religion and morals to that of law. Nothing was authentic at the highest level of legitimacy within politically and economically ordered governance space unless it was expressed in the language of law, of regulation, of rule systems. These might well start with framing principles, but which must always then point to general or specific commands. One need not be a politician, a priest, or an administrator to learn the language and to use it. Any authoritative mass organization that could learn the language of law could then participatory in the politics of legalization through which moral orders could be embedded in the disciplinary structures of control of mass collectives (the economy, politics, social organization, etc.). Right and wrong, expressed as law through political structures permitted the operation of mediating institutions nor necessarily attached to any priesthood, administrative organ, or political structure.
The fourth necessarily followed from the first three. A legalized system of morals ius administered through courts. A morality sourced in the state (as well as other institutions with power over people) and expressed through law, a legalized system of morals and norms, requires a remedial institution appropriate to its culture and structure ("Chroniclers in the Field of Cultural Production"). Courts provide a space that is open to mass organizations, and especially civil society organs as a political space within which conflicts over norm and cultural narrative may be resolved within the political structured managed, in turn, by the state ("Retaining Judicial Authority: A Preliminary Inquiry on the Dominion of Judges"). Civil society could thus aspire not merely to significant "influencers" of narrative, and of its expression as regulation (and regulatory objectives), but could also serve as a direct instrument of accountability through the mechanisms inherent in the self-reflexive systems of law. Anyone with access to the courts could now wield political authority as expressed through law.
Together, these provided the conditions necessary not just for the role of civil society, but also provided the structures within which it operated most effectively, the language it could most effectively utilize to meet its aims, and the venues where it could best leverage its authority. But the insight of Max Brooks' World War Z: An Oral History of the Zombie War (2006) also suggested the limits of civil society power was intimately connected to the sources of its strength: a reliance on the structures and language of traditional law and regulation (and therefore a horror of soft law and societal structures); a mistrust of the market where its power could be dissipated and the remedial structures of the state could not be used to leverage civil society aims; a reliance on elite cliques to augment and manage its power; a reliance on the business of civil society organization that then creatures a closed loop that ultimately limits its ability to be flexible and change with the times (a prisoner of its own mass appeal; they can become caricatures of themselves, trapped by the normative framework that brought them members); and lastly a dependence on state and international (public) and enterprise (private) officials, access to which is a necessary predicate to their power to affect the regulatory environment in which they must intervene.
These emerging roles, their strengths and limits, are starkly drawn in periods of crisis. And pandemic--especially the COVID-19 pandemic of 2020, provides a space in which the ritual functions of civil society--are manifested. These rituals that both confirm and legitimate civil society's role in governance within the state of global governance. They also suggest the limitations of the role.
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To that end, the two statements highlighted below serve as quite clear examples of the roles, rituals, constraints and entanglement of civil society within global governance of economic conduct. The ICAR Joint Statements are directed to governments, enterprises, and the investor community (the "masses" who matter). They comprise a coordinated whole that targets the respective human rights duties of states, responsibilities of enterprises, and the moral compass of markets. The Amnesty International Joint Statement on State use of Digital Surveillance Technologies goes both to the morality of accountability--when it is undertaken by its objects (the state and the enterprise)--and the character of its techniques. I will suggest very briefly seven characteristics of the manifestation of the civil society censor in the age of pandemic:
1. The Statements first illustrate the relationship of civil society to norms, law, culture, and morality as a function of governance. Civil Society center their work on the production of norms, rather than of rules. This is a two part process. The first is to identify those norms and rules to which the governance community is subject. And the second is to interpret and apply them to the context for which they are utilized. They serve the traditional role of the Roman censor, protecting public
morality by naming it and calling out those institutions that fail meet
their obligations. But here one understands morality as a quite
language-worldview constructed around law. The object is not merely to
construct a normative order, but to ensure that it is observed.
2. More specifically, the Statements show civil society in their role as a morality police, in a system, as described above, in which the language of morality is expressed as and through law. Legalization produces actualization through the mechanisms of law--not politics--though politics is used to nudge actors to use the mechanisms of law to fulfill their duties, responsibilities or obligations (depending on whether they are states, enterprises, or masses in markets).
3. The Statements evidence the manner in which civil society engages in this task as an outsider. They tend to avoid embedding within the structures of governance. That is an essential element of accountability. And it is a relationship deeply embedded into the legitimization of accountability structures in business (e.g., the outside auditor, the independent investigator, etc.).
4. Accountability is itself divided among three principal areas. The first is accountability around the norms themselves (identification and naturalization within the target governance community). The second is accountability around systems for the implementation of norms. The third focuses accountability on the operation of systems developed for the implementation of the norms. These are also deeply embedded patterns of accountability within markets and economic activity. It is naturalized within the the legal frameworks of fiduciary duty of boards of directors, and the assessment algorithms used by the American Department of Justice to manage the exercise of prosecutorial discretion.
5. The value and impact, and the drivers, of such activities are a function of a community of civil society that itself mirror the social organization of the communities over which it seeks to exercise the role of censor. Just as the narrative of the global community is driven by the G20; just as the cultures of global production and development are driven by thje Organization for Economic Cooperation and Development, so are the constriction of civil society united fronts driven through placement within a hierarchy of civil society power. These Joint Statements do not just elaborate a substantive position, they also confirm the status and authority of the universe of actors that together constitute global civil society. They reflect as much the internal politics of the civil society community, and the jockeying for influence and authority within that community, as it reflects the normative consensus reflected int he words of the statements.
6. The Statements also reflect a taxonomy of accountability. That taxonomy reflects a necessary "natural" ordering of governance that inevitably follows form the construction of systems through a language (and culture) of law, of legalized politics, and of its expressions, in its highest forms, through national judicial bodies. To the state falls the duty of morality; to the enterprise the responsibility of morality; and to the markets (the masses in their only role that counts in this system) the obligation to behave. Note as well the de-centering of competitive normative orders--principally religious institutions.
7. The Statements more ironically illuminate the way that civil society constructs itself as outside the structures of law-morality, within which it measures conformity and calls its objects to account. These measures, and that process, it seems, do not apply internally. The result, of course, has been disastrous sometimes ("Timeline: Oxfam sexual exploitation scandal in Haiti"). But these tend to be pushed aside and dealt with off center stage in ways that might produce condemnation had such action been undertaken by an enterprise or a state. In this case, of course, surveillance is critical to the work of the civil society actors, and the most technologically advanced forms offer a substantial enhancement of their ability to engage in the sort of necessary accountability at the center of their (self made) mandate. And yet, that is hardly a focus.
8. The Statements then suggest as well, the place that civil society has made for itself within the remedial function. The censor finds fault and brings claims; they encourage and facilitate the exercise of rights against those with duties, responsibilities and obligations. But they leave it to the state, or the market, to determine punishment. This, of course, is an inevitable division of authority given the structure of the system. Yet at the same time, the disconnection between those who seek to bring others to account, those who help construct the scales on which accounts are measured, leaving that imposition of punishment to court or market, produces another potentially challenging set of disjunctions. This is a disjunction between the risk prevention and mitigation functions and the remedial functions. This is an area in which the systems within which civil society undertake their roles have yet to produce a satisfactory approach.
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Building a rights-based response to Covid-19
05/14/2020
FOR IMMEDIATE RELEASE
May 14, 2020
MEDIA CONTACT
Basma Humadi, basma@icar.ngo
Accountability Organizations Call on Governments, Businesses, and Investors to Respond to Covid-19 Environmental and Human Rights Risks
WASHINGTON, D.C. – International Corporate Accountability Roundtable (ICAR), along with over 30 partner organizations, released joint statements today calling on governments, businesses, and investors to respond to Covid-19 related challenges consistent with their environmental and human rights obligations and responsibilities.
“In far too many governments and far too many businesses, the focus has been meeting the wants of the already protected rather than the needs of the most vulnerable,” said ICAR Executive Director, Alison Friedman. “That has to change—not just because it’s the right thing to do, but because it’s the only way to build back sustainably. The strength of our societies, our public health response, and our economic recovery depends on meaningful protection for workers, marginalized groups, and our environment.”
As demonstrated by the list of signatories, these statements reflect broad consensus around concrete steps that can be taken today by governments, businesses, and the investor community to uphold their obligations and responsibilities laid out in international frameworks and protect those most affected by this crisis.
The statement to governments calls on them to meet their human rights obligations during Covid-19, including protecting against business-related human rights abuses. To this end, governments must ensure that stimulus packages prioritize those most at risk and include clear and enforceable conditions to prevent providing blank checks to industry. Governments must take steps to protect the rights of workers (including those in supply chains); prohibit business behavior that negatively impacts consumers, such as corporate profiteering and price gouging; and provide additional protections for human rights defenders and marginalized groups. Governmental response plans should be publicly disclosed and include provisions for companies to increase the transparency of their own responses. Finally, governments should ensure remedies are available where human rights harms have occurred, and should continue to push businesses to conduct human rights and environmental due diligence, especially regarding Covid-19 related risks.
The statement to the business community outlines how companies can uphold their human rights responsibilities during this time. This includes offering paid leave for employees, providing employees with PPE and safe operating procedures, and amending work schedules to comply with social distancing guidelines. Companies should also mitigate the economic impact of the virus by avoiding major layoffs and loss of benefits, prioritizing financial decisions that safeguard employee living standards, and providing remedy for those that have been negatively impacted by business practices relating to Covid-19. Additionally, companies should honor collective bargaining agreements and relationships with unions, maintain contracts with suppliers, and refrain from profiteering behavior. Finally, corporations should enhance human rights and environmental due diligence and look out for human rights defenders and groups made even more vulnerable by the current situation, including Indigenous Peoples.
The statement to the investor community urges investors to call upon businesses to craft their Covid-19 response plans with the aforementioned goals in mind, and special consideration for employee health, safety, and economic security. To this end, investors should prioritize utilizing their leverage towards companies that need to improve their Covid-19 response, ensuring that all relevant stakeholders are consulted in the creation of response plans. They should also call for increased corporate disclosures, actively participate in virtual Annual General Meetings, and promote financial responsibility, including moratoriums on executive pay raises, stock buybacks, and the payment of dividends, for the duration of the pandemic. Investors should speak out publicly against corporations and governments whose responses are falling short, while paying attention to vulnerable communities and human rights defenders and advocating for sustainable economic recovery plans.
While the current situation requires immediate action, the statements also drive home the need for forward looking plans to transition to a more just economy and social order, guided by the principles of participation, human and environmental rights, and democratic governance. This involves, among other things, promoting forms of business governance that center on workers and communities, committing to a social purpose that considers the wellbeing of all stakeholders and maximizes social good, and adhering to international human rights principles. Governments, businesses, and investors each have a role to play in realizing this transition. Going back to business as usual after Covid-19 is not an option.
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Digital surveillance to fight COVID-19 can only be justified if it respects human rights
2 April 2020, 15:30 UTC
More than 100 civil society groups sign joint statement setting out conditions that must be met before the use of surveillance technology to fight pandemic
With governments across the world rapidly expanding the use of digital surveillance in an attempt to combat the COVID-19 pandemic, Amnesty International and other leading NGOs have set out strict conditions that must be met to safeguard human rights and prevent surveillance overreach.
More than 100 hundred civil society groups joined Amnesty in signing the statement, including Access Now, Human Rights Watch and Privacy International.
“Technology can play an important role in the global effort to combat the COVID-19 pandemic, however, this does not give governments carte blanche to expand digital surveillance. The recent past has shown governments are reluctant to relinquish temporary surveillance powers. We must not sleepwalk into a permanent expanded surveillance state now,” said Rasha Abdul Rahim, Deputy Director of Amnesty Tech.
“Increased digital surveillance to tackle this public health emergency, can only be used if certain strict conditions are met. Authorities cannot simply disregard the right to privacy and must ensure any new measures have robust human rights safeguards. Wherever governments use the power of technology as part of their strategy to beat COVID-19, they must do so in a way that respects human rights.”
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