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As long as you do not yet know the true Way [it does not matter] whether [it is] Buddhist Law or the laws of the world of men—you will think of them as correct ways, and believe them to be good things; however, from the perspective of the true ‘Way,’ the major “models” and standards of the world, seen together, are all biases of individual minds and, based on these distortions, go against the true Way. ( Miyamoto Mushashi, The Five Rings: Miyamoto Musashi’s Art of Strategy (David K. Groff (trans); NY: Cartwell Books, 2012), p. 210 (emptiness))
I have been working on the production of a comprehensive commentary of the United Nations Guiding Principles for Business and Human Rights. This is a humbling task. It follows the production of both an official commentary, written in tandem with the UNGP itself, and a collective commentary of the UNGP undertaken by some of the most distinguished students of other fields of human rights, business, and its related fields of academic study ( The UN Guiding Principles on Business and Human Rights: A Commentary (Barnali Choudhury (ed); Edward Elgar, 2023).
I am at a point where I can start vetting portions of the draft. I hope to share those discussion drafts with a wider audience in hopes of getting feedback. In these posts I provide a short summary of the draft chapter and a link t access a 'pdf' version. All draft chapters may be found on my Coalition for Peace & Ethics Website website at UNGP Commentary Page HERE.
This post introduces the manuscript's Chapter 5 ("From Governance Gaps to Interpretive Spaces in the UNGP: A Framing Analysis Historical Foundations of the UNGP Project"). The primary focus of this chapter are gaps, and their effect in creating interpretive spaces. This brings the reader back to the chapter’s opening quotation from Miyamoto Misashi’s Five Rings (set out above) and approaches to UNGP commentary. Gaps in approaching the ideal or expected produce quite distinct ways of approaching the ideal, which together represent the form of the bias inherent in distinctive approaches to any ideal. In that context it is the bridge rather than the perspective that assumes a critical role.The gap between the draft UNGP and the UNGP in final form is one gap. The gap between inductive pragmatism grounded in the “no fundamental transformation” principle and the normative principles of doing no harm as measured against adverse human rights impacts is another. These gaps are embedded, of course, in the text of the UNGP itself, as well as in the constitution of its “spirit.” The gaps and its interpretive consequences constitute an important basis on which the sometimes substantial ranges of plausible interpretation of the UNGP principles are produced. These discussions follow in Chapters 6-9 and its more granular commentary on the UNGP in final form. It is important, however, to highlight the structuring of the core structures that produce the interpretive gaps at the heart of the granular commentary that follows. First it helps define the extent and form of the spaces within which such interpretive gaps exist as plausible readings of the UNGP and its spirit. Second, it highlights the fundamental dynamic element of the UNGP itself--an effort to bridge governance gaps that itself produces a dynamic dialectic that means to bridge the gaps between principle and pragmatism, between human rights and other core principles of economic organization and markets, between individual and collective rights and obligations, and between private autonomy and public policy.
Section 5.1 considers the evolution from draft text circulated in 2010 to the final version of the Guiding Principles presented in early 2011. Section 5.2 turns from the interpretive gaps presented in the movement from draft to final versions of the UNGP, to the gaps between principle and pragmatism which the UNGP attempts to bridge. These touch on the dilemmas of traditional law-state systems in matrices of global economic production, the law-policy conundrums of the state duty, the character of the principles themselves, the contradictions of the corporate person and its paradoxes when the state itself projects regulatory and productive power simultaneously. Section 5.3 then elaborates an initial commentary on the form and scope of interpretive gaps that emerge from the UNGP’s efforts to bridge governance gaps using a framework that itself preserves the structures from which those gaps take form. These are meant to provide a foundation for the more detailed engagement of a close reading of the principles themselves, as well as of the spirit of the UNGP that emerges from the project itself. (From Chapter 5 text).
The Chapter 5 discussion draft may be accessed directly HERE. The text of the draft of chapter 5 as of the time of this posting also follows below along with its table of contents.
5.1 From Governance Gaps to Interpretive Spaces in the UNGP: A Framing Analysis
5.1.1 The Devil Is in the Detail—Section By Section Analysis—Overall Structure and Capstone Principle
5.1.1.1 Overall Structure
5.1.1.2 Definitions
5.1.1.3. Introduction to the Draft Principles and General Principles of the Guiding Principles
5.1.2 The State Duty to Protect Principles
5.1.2.1 Foundational Principles
5.1.2.2 Operational Principles—General State and Regulatory Policy Functions
5.1.2.3 Operational Principles—The State-Business Nexus
5.1.2.4 Operational Principles—Supporting Business Respect for Human Rights in Conflict Affected Areas
5.1.2.5 . Operational Principles—Ensuring Policy Coherence
5.1.3 The Corporate Responsibility to Respect Human Rights
5.1.3.1 Foundational Principles
5.1.3.2. Operational Principles, Policy Commitment.
5.1.3.3 Operational Principles, Human Rights Due Diligence
5.1.3.4. Operational Principles, Remediation
5.1.3.5. Operational Principles, Issues of Context
5.1.4 Access to Remedy Principles
5.1.4.1 Foundational Principles
5.1.4.2 Operational Principles—State-Based Judicial Mechanisms
5.1.4.3 Operational Principles—State Based Non-Judicial Mechanisms
5.1.4.4 Operational Principles—Non-State Based Grievance Mechanisms
5.1.4.5 Operational Principles—Effectiveness Criteria
5.2 The Gaps Between Principles and Pragmatism in the Development of the UNGP
5.2.1 The Dilemmas of the Law-State System in a Global Context
5.2.2. The law-policy conundrum of the state duty to protect
5.2.3. Character of the Guidelines: Framework, Handbook, Roadmap or Law?
5.2.4. The Character of Domestic Corporate Law Making and the International Responsibility to Respect
5.2.5. The Problem of Double Character: State-Owned Enterprises and Corporations in Conflict Zones
5.2.6. Remedies
5.2.7. Inter-systemic Issues
5.3 The Textualization of Intent: A Preliminary Framing Commentary
5.3.1 The State Duty to Protect Human Rights
5.3.2. The Corporate Responsibility to Respect Human Rights
5.2.3.1 Foundations
5.3.2.2. Scope of the Corporate Responsibility to Protect and Complicity
5.3.2.3 Normative Content
5.3.2.4. Human Rights Due Diligence
5.3.2.5 Elements of Human Rights Due Diligence
5.3.2.6. HRDD Statements of Policy
5.3.2.7. HRDD Assessing Impact
5.3.2.8. HRDD Integration
5.3.2.9. Elaboration: What is Specific to Human Rights
5.3.2.10. Applicability to All Business
5.3.2.11. Effectiveness
5.3.2.12. Implementation; Consultation and Transparency
5.3.2.13. Prioritizing Issues in HRDD
5.3.2.14. When International and National Norms Conflict
5.3.2.15. Supply Chain
5.3.3 Human Rights Framework Linkage Issues
5.3.3.1. Indigenous People
5.3.3.2 Gender
5.3.3.3 Finance
5.4 Conclusion
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