Who Owns the Name of God? The Malaysian Government Knows!

Who Owns the Name of God? One would at first suspect that the answer is that the Divine Presence owns its own name, or at least all of the variations through which humans attempt to provide a means of communicating about the Divine Presence (or speaking of it with reference to the religious traditions of others). But over the course of the last several centuries, humans have sought to categorize and narrow the attribution of the Divine name so that different variations correspond to the same Presence in different religious traditions. This is particularly odd when the Name of God itself is not a name so much as a descriptor. In a sense, these efforts could be considered pagan, in the sense that even among those who purport to believe in a single Diety are also happy to insist that this Singularity has many aspects, each requiring a different name. On the other hand, it is as likely that efforts of religious communities to "possess" a particular name of God is also an act of chauvinism--at its most crass; it serves as a mere (but nonetheless important) marketing ploy directed to the masses, and to that extent ought to be deplored.

And now, it appears, the state has become involved in issues of ownership rights over the name of God.

The Malaysian government has refused to release 10,000 Bibles which it seized because they contained the word Allah to refer to God. The government, which is dominated by Muslim Malays, claims that the word Allah is Islamic and that its use in Bibles could upset Muslims. The Roman Catholic Church is challenging the ban in court.

Robert Pigott, Malaysia Withholds 'Allah' Bibles, BBC News Online, Nov. 4, 2009. The issue is framed in legal terms, as one involving rights of minorities. "The government has impounded Bibles before, intercepting 5,000 in March as they were imported from Indonesia. . . . The Christian Federation of Malaysia said the religious freedom guaranteed by the Malaysian constitution was meaningless if people were denied Bibles which used their own language. " Id. It is also framed in property terms, as one involving rights to a name, like one can assert rights in a trademark. "Church officials say that although the word Allah originated in Arabic, Malays have used it for centuries to refer generally to God, and Arabic-speaking Christians used it before Islam was founded. " Id.

But, of course, the real issue is one of power and control. Christians long taunted Jews (and some persist to this day) by insisting that there is a necessary substantive distinction between the one "true" and "only" God--a Christian God who is solely worthy of the referent "God" and the false or past notions of Divine Presence whose name was derived from translations of the Hebrew and Aramaic contractions of the Divine Referent in the Old Testament. Consider something as innocuous today as the General Audience (Nuptial Meaning of the Body) Jan. 9, 1980 ("Rereading and analyzing the second narrative of creation, the Yahwist text, we must ask ourselves if the first "man" ('adam), in his original solitude, really "lived" the world as a gift. . . . , Though man was in this situation of original happiness, the Creator himself (God-Yahweh) and then also "man," pointed out that man was alone - instead of stressing the aspect of the world as a subjectively beatifying gift created for man (cf. the first narrative and in particular Gn 26:29)."). Likewise, for some, Allah was a means of distinguishing a false Divine Referent, that of the Muslims, from the true belief whose foundation could only be referred to as "God". Christians, of course, were not the only one who engaged in this sort of linguistic power play. But its symbolic value was powerful. It reduced and distinguished notions of the Divine between religions so that, by extension, each faith could be assured that its own Divine Referent was the only true one, and the purported belief in "God" by others, especially by non-believers, could be distinguished. This is brought out in its sublime subtlety in the Papal Encyclical Nostra Aetate (Paul VI, Declaration on the Relation of the Church to Non-Christian Religions, Oct. 28, 1965) (for example, "The Catholic Church rejects nothing that is true and holy in these religions. She regards with sincere reverence those ways of conduct and of life, those precepts and teachings which, though differing in many aspects from the ones she holds and sets forth, nonetheless often reflect a ray of that Truth which enlightens all men. Indeed, she proclaims, and ever must proclaim Christ "the way, the truth, and the life" (John 14:6), in whom men may find the fullness of religious life, in whom God has reconciled all things to Himself." Id., Para. 2). There is a fine here between beliefs that define a religious community and the appropriate of the descriptors they might share in common with others, but which might, if used in common, suggest an equivalence that is otherwise discouraged as communal-faith destroying.

The fight between Christians and Muslims, then, can be understood as rights not merely to control a Divine Referent, but as as a battle for control over the "accepted" name of that Referent. If Christians, and Jews, began to refer to the Divine Presence by reference to the word "Allah", then Muslims would appear to lose a monopoly of control over a word that powerfully seeks to legitimate their claim of possession to the only true Referent of the Di¡vine and therefore the only true path to a relationship with that Presence. For the Church in Southeast Asia, this is not a new battle. For example, John Paul II used the term in his apostolic blessing on pilgrims from Indonesia in 1995. Address of His Holiness John Paul II to a Group of Pilgrims from Indonesia, July 7, 1995 ("Semoga Allah memberkati Indonesia dengan damaiNya. Semoga Allah memberkati anda sekalian. (May God bless Indonesia with his peace. May God bless you all)." Id.)

The issue, then, though framed in terms of law and rights, is in fact, about the power of religious institutions--and their faith communities, to assert a critical power over language and meaning. To control language and meaning is to control the levers of authentic relations with God. It appears that the Evangelist John might have understood the issues best of all 2000 or so years ago when he wrote:

"In the beginning was the Word, and the Word was with God, and the Word was God. The same was in the beginning with God." John 1:1-2.

The irony here, and the full understanding of these words by the Muslim community, and its translation into the language of law and rights by the state and the Christian community, bespeaks of the glory of the perverse which appears to difficult to resist. Who owns the name of God, or the descriptor, God? It may depend on which community has the power to appropriate the term and limit its use to a particular faith community, and by implication, denying both the use of the term and claims for legitimate connection to the Divine Referent.

Part II: The OECD, Vedanta, & the Indian Supreme Court—Polycentricity, Transnational Corporate Governance and John Ruggie’s Protect/Respect Framework

In Part I of this essay, Larry Catá Backer, Part I: The OECD, Vedanta, and the Supreme Court of India—Polycentricity in Transnational Governance--The Issue of Standing, Law at the End of the Day, Nov. 1, 2009, I posited that the state system remains stubbornly grounded in a monocentric view of law and regulation, even as it implements polycentric governance systems through intergovernmental and other international organizations. Slowly, and in increasingly evident ways, supra-national actors, and primarily multi-national corporations, are confronting not only traditional state based law systems, but also and simultaneously, supra-national norm systems. Larry Catá Backer, On Challenges to Operationalizing a Transnational Framework for Business and Human Rights--the View From Geneva, Law at the End of the Day, Oct. 13, 2009.

I also suggested that nowhere is this more evident than in the transnational system of National Contact Points for the administration of the Organization for Economic Cooperation and Development’s (OECD’s) soft law principles based governance system for multinational corporations—the soon to be revised Guidelines for Multinational Enterprises (2000). I then turned to recent activity of the U.K. National Contact Point (“UK-NCP”) that well highlights both the structure and autonomy of such norm systems from state based law systems by examining the recent Initial Assessment by the UK National Contact Point for the OECD Guidelines for Multinational Enterprises: Survival International and Vedanta Resources plc, March 27, 2009 (“Initial Assessment”) and the. Final Statement by the UK National Contact Point for the OECD Guidelines for Multinational Enterprises: Complaint from Survival International against Vedanta Resources plc, 25 Sept. 2009 (“Final Statement”).

Part I was focused on the issue of standing elaborated in those works. The approach of the UK-NCP suggests a broader interest-based stakeholder focus for standing than either one narrowly drawn on an “injury in fact” approach of the United States or even the “sufficient interest” standard of English law. Indeed, I posited that the UK-NCP’s was neither derived from any legal standard, nor otherwise bound by the rules of law-based systems. Rather, the UK-NCP grounded its approach on its assessment of the principles underlying the substantive provisions of the Guidelines and the governance structure of the OECD Guidelines system itself. By adopting a stakeholder formulation for standing, the UK-NCP remained true to the internal logic of the Guidelines, and thus autonomous of national law and its restrictions. As a consequence, while Survival International might not have been able to assert appropriate standing in this case in an action brought before UK courts (putting aside the issue of Vedanta as a proper party, rather than that of its subsidiaries, the legal persons whose actions were at issue directly), it could maintain such a complaint within the governance system of the OECD and its Guidelines for Multinational Corporations.

Yet, the systemic autonomy suggested by the UK-NCP’s approach to standing was substantially deepened in its application of the substantive rules of the Guidelines to Vedanta. It is to that aspect of the UK-NCP’s Final Statement that this part of the essay turns. Recall that Survival International alleged that Vedanta’s Indian subsidiaries had failed to adequately consult with a local ethnic group, the Dongria Kondh, in connection with the development of mining operations in the Indian state of Orissa. (Final Statement, supra, at § 8). These operations were to be undertaken jointly with an instrumentality of that Government. (Final Statement, supra, at § 8, 21).

These failures, Survival International argued, constituted a breach of several international conventions (International Covenant on Civil and Political Rights; Convention on the Elimination of al Forms of Racial Discrimination; and Convention on Biological Diversity) and India’s domestic law (Scheduled Tribes and Other Traditional Forest Dwellers Act of 2006). (Final Statement, supra, at § 10(b) & (c)). Those alleged breaches, Survival International asserted also constituted breaches of the Guidelines (Chapter II(2) (respect human rights consistent with host government’s international obligations); Chapter II(7) (development of self regulatory practices and management fostering mutual trust between enterprises and local communities); and Chapter V (2)(b) (engagement in adequate and timely communication and consultation with affected communities). (Final Statement, supra, at § 11).

Vedanta raised four points in response. First, it argued that Survival International had not met its evidentiary burden for standing, specifically because it offered no evidence that it had the support of the Dongria Kondh. Final Statement, supra, at § 12(a). Second, it argued estoppel. Because the mine project had been approved by the Supreme Court of India and the State of Orissa, the allegations, had no basis, especially since for its judgment the Supreme Court of India considered the issues raised by Survival International. Final Statement, supra, at § 12(b). Third, Vedanta argued that its corporate social responsibility standards , evidenced by its published annual reports sufficiently met the charges of the complain with respect to adequacy of systems and engagement with local communities. Final Statement, supra, at § 12(c). Lastly, Vedanta argued that it had adequately consulted with the local communities, participated in its resettlement of affected families, and was committed to “its Integrated Village Development Program.” Final Statement, supra, at § 12(d). More importantly, though, it suggested that revisiting those issues was unnecessary because, having considered these issues under Indian law, “the Supreme Court of India ‘was satisfied that the local communities (of which the Dongria Kondh are a part) had been consulted appropriately.’” (Final Statement, supra, at § 12(d)).

But having raised these points in a letter to the UK-NCP (Id., at § 12), Vedanta then failed to participate in any further proceedings, other than through an exchange of emails and letters. (Id., at § 14). Vedanta also declined an offer of mediation, and though, at Vedanta’s request, an extension was given to deliver evidence, Vedanta submitted no further evidence to support its claims. (Id., at § 16). For this faolure to participate it was berated by the UK-NCP. The UK NCP was disappointed by Vedanta’s decision not to engage fully with the UK NCP’s complaint process.

The UK NCP was particularly disappointed with Vedanta’s refusal to take up its offer of sponsored professional conciliation/mediation, and Vedanta’s failure to provide any evidence during the examination stage to support its position in respect of the complaint. (Id., at § 17).

This is ironic, of course, when juxtaposed with the language of the Final Statement at paragraphs 1-2. But the irony is important. It suggests that while the Guidelines remain purely voluntary, in the sense that they are not mandatory within domestic law-systems, the governance framework itself privileges the member state’s obligation to “encourage” observance of the Guidelines wherever they operate. To that end, the social-norm system is both optional (with respect to multinational enterprises) and also mandatory (with respect to the obligations of states participating in this optional system). It is in that sense that Paragraphs 1-2 and 17-18 of the Final Statement become comprehensible.

The UK-NCP spent a considerable amount of time digesting Surbival International’s evidence of the relationship between the Dongrai Kondh and the land which they inhabit. (Final Statement, supra, at §§ 22-34(. Beyond establishing a factual basis for the conclusions of the UK-NCP, the material is interesting in two particular respects. First, the UK-NCP used its factual development to attack the neutrality of the State of Orissa in these proceedings. Because, in effect, the State of Orissa was engaged in commercial activity along with Vedanta’s subsidiaries, it would be treated like a private party. As such its assessment of compliance with law purportedly made in its sovereign capacity, would be given little weight.

In addition, the UK NCP is concerned that the views of the State of Orissa may be influenced by the fact that the Orissa Mining Corporation Limited, a State of Orissa owned company, is in joint venture with Sterlite Industries on the construction of the bauxite mine in the Niyamgiri Hills. For these reasons, the UK NCP decided to give greater weight to the evidence from the Central Empowered Committee. (Final Statement, supra, at § 32).

Second, the UK-NCP sought to distinguish the judgment of the Indian Supreme Court as potentially based on a factual error. (Final Statement, supra, at § 33 (with respect to the issue of the connection between the places inhabited by the local community and the proposed site of the mining operations)). It noted a possible discrepancy between the report of the Central Empowered Committee, “established by the Supreme Court of India in 2002 with a broad task to monitor and ensure the compliance of the orders of the Supreme Court concerning the subject matter of forests and wildlife and other issues arising out of said orders” (Id., at § 28) and the representation by Vedanta of the Indian Supreme Court’s conclusions. This is a subject taken up again in the UK-NCP’s consideration of Vedanta’s compliance with its consultation duties.

Likewise, the NCP-UK devotes a substantial amount of space to the adoption of Survival International’s view about the consultations between the mining stakeholders and the Dongria Kondh. (Final Statement, supra, at §§ 35-56). It is thin this discussion that the UK-NCP begins to elaborate its theory for the irrelevance of the opinion of the Supreme Court of India to the extent of Vedanta’s obligation to comply with the OECD Guidelines. First, the UK-NCP look directly to international instruments for a standard against which to judge the adequacy and timeliness of Vadanta’s communications. (Final Statement, supra, at §§ 44-47).

The UK NCP considers that Article 10 of the “Akwe: Kon Guidelines”, produced by the Secretariat of the Convention on Biological Diversity in 2004, provides a good indication of what constitutes an “adequate and timely” consultation with indigenous groups because it takes into account the specific needs of indigenous people like the Dongria Kondh and enables companies practically to take these needs into account when consulting indigenous groups. (Final Statement, supra, at § 44).

Like the Guidelines, themselves, the Akwé: Kon are voluntary guidelines for the conduct of impact assessments relating to development that would take place or otherwise affect sacred sites and other areas occupied or used by indigenous or local communities. (See Secretariat of the Convention on Biological Diversity, Akwé: Kon Guidelines (2004)). In the forward to the 2004 brochure, Hamdallah Zedan, noted that “[i]t is expected that impact assessment procedures and methodologies embodied in the Voluntary Guidelines will play a key role in providing information on the cultural, environmental and social impacts of proposed developments.” (Id., at 1). These Guidelines were intended, in part, to be used “in conjunction with the guidelines for incorporating biodiversity related issues into environmental impact assessment legislation.” (Id., at 2). But it now also serves as part of the fabric of voluntary norms that are acquiring significance as defining behavior within social-norm systems. And so the UK-NCP treated the Akwé: Kon. In this sense, voluntary Guidelines, like their law-system statutory counterparts, do not stand in isolation. Instead each together serves as a strand defining a fabric of governance with its own internal logic and application. In this case, an application that is legitimate without any dependency on the conventional otherwise legitimacy conferring actions of states. Having grafted the Akwé: Kon onto the Guidelines, the UK-NCP determined that Vedanta failed in its obligations under the Akwé: Kon and consequently also under the Guidelines. (Final Statement, supra, at § 46, 79).

But the UK-NCP was confronted with a difficult fact. Having relied on the Central Empowered Committee’s report (id., at § 28), it had to determine the effect of the subsequent action of the Indian Supreme Court and the role of the State of Orissa. (Final Statement, supra, at §§ 48-51). The UK-NCP noted that the State of Orissa rejected the report of the Empowered Committee, and its determination that under its own law an adequate level of local consultation had been undertaken. (Id., at §48). The UK-NCP first discounted the State of Orissa’s determinations. (Id., at §49). Moreover, in keeping with its objections to Vedanta’s failure to enthusiastically participate in the proceedings, it chose to read narrowly the bare assertions of participation in local consultations (id., at § 50) or the truth of the assertion that the State of Orissa “carried out a separate consultation.” (Id., §51). This later punitive position is somewhat jarring especially in light of the UK-NCP’s announcement of its efforts to seek additional information from “other relevant UK Government Departments, business and trade union’s organizations, and civil society.” (Id., §18). Tellingly absent was any effort to seek information from that government most directly involved—that of the Indian State or Orissa. In a case in which the principal actors, both sovereign and private were in India, it remains something of a mystery why the UK-NCP, otherwise so willing to reach out to other constituencies, became painfully shy about reaching out beyond its own borders. This is perversely ironic in light of its aggressive willingness to read the instruments under which it is operating as fundamentally global or at least transnational. It is easy to see, though, why officials in India might view this as less than benign neglect. Read through a post-colonial prism, it is insensitive at best (and ironically so given the expressed need for sensitivity throughout the Final Statement) or at worst a fairly ostentatious (though perhaps unconscious) bit of post colonialist domineering by the former colonial master, now playing the role of teacher to what two generations ago would have been its colonial administrative servants. Sadly, of course, this sort of insensitivity can have significant negative repercussions on the viability of the potentially laudable system the UK-NCP is seeking to implement.

Yet if the official actions of the government of the State of Orissa are relatively easy to distinguish, the actions of the Supreme Court of India are not. (Final Statement, supra, §§52-56). Here again, the analytical approach of the UK-NCP is telling, both in its elaboration of a theory of supra-national autonomy for the Guidelines (and Guidelines system), and in its carelessness in the matter of post-colonial sensitivity. The UK-NCP first attempts to distinguish the rulings of the Supreme Court of India. (Final Statement, supra, § 52-55). “Neither Order suggests that the Supreme Court of India ruled (or was asked to rule) specifically on the need to consult local and indigenous communities, of which the Dongria Kondh are part.” (Id., at § 56).

But more importantly, the UK-NCP determined that even if the Indian Supreme Court’s rulings were determinative of Vedanta’s obligations under Indian law, they had no effect on a determination of Vedanta’s obligations under the Guidelines, and especially on the application of the Guidelines within the company’s home jurisdiction.

The UK NCP is not aware of whether consultation with indigenous groups is mandatory under Indian law, however Chapter V(2)(b) of the Guidelines does recommend consultation with communities directly affected by a multinational enterprise’s environmental, health and safety policies and their implementation. The UK Government expects UK registered companies operating abroad to abide by the standards set out in the Guidelines as well as to obey the host country’s laws. (Id.).

Vedanta is thus faced with the simultaneous application of two governance systems, the law-system of India and the social-norm system represented by the Guidelines. That polycentricity is both disconcerting to entities subject to its rules as well as to conventional notions of governance that are both linear (only one set of laws can operate at one place at one time) and that privilege the law-systems of domestic law as beyond contradiction when applied within their territory.

VAL questioned the legal right of UK-based agency to comment on the possible impact of a project being developed in India and considered its interference to be against the nation's sovereignty. “We condemn the findings of the UK-based agency. Our bauxite mining project at Niyamgiri hills has been cleared by the Supreme Court, the highest judicial authority in India. It is inappropriate for the agency of any other country to comment on a project being developed in India”, Mukesh Kumar, chief operating officer of VAL's Lanjigarh project told Business Standard. Vedanta condemns UK agency's findings, Business Standard, Oct. 14, 2009).

Thus Vedanta’s response was both conventional, and conventionally correct, but missed the point –that governance systems have been evolving.

The simultaneity that tends to shrink the breadth of sovereign regulation, even of matters that occur within its own territory, and which Vedanta criticized correctly on traditionalist conventional grounds, applies not only to conformity to rules, but also to determination of the extent of the compliance by the host state of its own obligations under international law. Thus, and remarkably, the UK-NCP determined that Vedanta could not rely on India’s assessment of its own compliance with international law to which it had bound itself in an action arising under the Guidelines. In the later case, the determination of Indian compliance with its obligations would be made independently on the basis of the interpretation of those obligations in the forum in which it defends complaints.

While the UK NCP acknowledges the difficulty of UK multinational companies, including Vedanta, to keep track of the international human rights obligations both of the UK and of the host countries in which they operate, companies should nonetheless establish a system that helps them assess and keep track of the human rights impact of their economic activities. (Id., at § 61).

And again, the colonists overtones are both unfortunate and unmistakable. Still, in this regard, the UK-NCP offers small consolation. It declined to consider the issue of the violation of Indian law. “It is outside the UK NCP’s remit to determine companies’ violation of local law and regulations with no reference to the Guidelines.” (Id., at § 63). Yet this, also, is grounded in the effort to outline an autonomous system of governance untied to any national law-system. However, there is a sting here as well. While local Indian law is beyond the jurisdiction of the UK-NCP under the Guidelines, the extent of India’s compliance with its own international law obligations may be at least indirectly subject to analysis, though not of protection for a company faced with a complaint under the Guidelines.

But how to escape this potential contradiction? The UK-NCP suggests a set of mediating principles in the form of the approach to business and human rights being developed by John Ruggie in his capacity as Special Representative of the Secretary General of the UN on the issue of human rights and transnational corporations. (Final Statement, supra, §§75-78). Especially important in terms of the mediating principles that might be applied to avoid conflict polycentricity was Mr. Ruggie’s analytical framework described in his 2009 Report, Report of the Special Representative of the Secretary General on the issue of human rights and transnational corporations and other business enterprises, John Ruggie, Business and human rights: Towards operationalizing the “protect, respect and remedy” framework”, United Nations, 22 April 2009, paragraph 50. (Id., at § 77).

To this effect, Vedanta should consider implementing John Ruggie’s suggested key steps for a basic human rights due diligence process: Adopting a human rights policy which is not simply aspirational but practically implemented; Considering the human rights implications of projects before they begin and amend the projects accordingly to minimise/eliminate this impact; Mainstreaming the human rights policy throughout the company, its subsidiaries and supply chain; [and] Monitoring and auditing the implementation of the human rights policy and company’s overall human rights performance. (Final Statement, supra, § 78).

The UK-NCP thus does two things by pointing to the development of a United Nations based soft law principles based system for governance. First, it reinforces the notion of systemic autonomy for social-norm systems. The due diligence requirements applicable under the Guidelines are independent of compliance with the law or standards of any state, including the host state where the alleged misbehavior occurs. Second, it suggests the growing integration of soft law systems into a more coherent single web of obligations, principles and standards that can more easily stand alone. No longer dependent on law-systems for legitimacy or expression, it can serve as an independent source of corporate obligation, one that not dependent on or inferior to the obligations imposed simultaneously on corporations by host or home state legal systems.

And thus one can understand the nature of the governance polycentricity at the heart of the UK-NCP’s analysis. The UK-NCP, more than other organs of the OECD apparatus for developing its principles based governance norms, has become a leading voice in the arplication of a social norms based framework drawn from an increasingly comprehensive network of governance standards being developed at the supra national level. Polycentricity is not merely about the enforcement of the Guidelines. It is as well about the intermeshing of a large number of norms architectures into something like a comprehensive and coherent structure of governance. See, Larry Catá Backer, Case Note: Rights And Accountability In Development (Raid) V Das Air (21
July 2008) And Global Witness V Afrimex (28 August 2008); Small Steps Toward an Autonomous Transnational Legal System for the Regulation of Multinational Corporations, 10(1) Melbourne Journal of International Law 258 (2009). But the UK-NCP's emerging analytical and substantive framework is not merely about layering governance, that is not not just polycentricity. Rather, because polycentricity produces potential tension among simultaneously operating systems, the move toward supra-national social-norms based governance also includes a strong mediating element. In this case it is looking to the supra national system itself to serve both as source of autonomy and as a bridging element between principles based systems at the supra national level and law based state systems. And with respect to mediation, as well as substantive principles in the area of business and human rights, it appears that the Protect/Respect/Remedy framework being developed by John Ruggie may serve as a baseline.

Part I: The OECD, Vedanta, and the Supreme Court of India—Polycentricity in Transnational Governance--The Issue of Standing

The state system remains stubbornly grounded in a monocentric view of law and regulation, even as it works to construct increasingly relevant multi-level systems of soft governance. “Here the great difficulty is defining the scope of the obligations to be imposed, formally and socially, on enterprises. There is a great tension between the need for precision and certainty--the great foundation of law systems--and the reality that in practice all activity is intimately interconnected--the foundation of systems of social or customary norm systems.” Larry Catá Backer, On Challenges to Operationalizing a Transnational Framework for Business and Human Rights--the View From Geneva, Law at the End of the Day, Oct. 13, 2009.

Recent comments of John Ruggie have made explicit what has been occurring implicitly over the course of the last decade.

The “protect, respect and remedy” framework lays the foundations for generating the necessary means to advance the business and human rights agenda. It spells out differentiated yet complementary roles and responsibilities for states and companies, and it includes the element of remedy for when things go wrong. It is systemic in character, meaning that the component parts are intended to support and reinforce one another, creating a dynamic process of cumulative progress—one that does not foreclose additional longer-term meaningful measures. John Ruggie, Opening remarks by UN Special Representative John Ruggie, October 5, 2009, at 5.

What Mr. Ruggie has been describing is new territory, one that rejects the monopoly of law systems within states and the marginalization of norm systems as merely non-binding and therefore not of the same dignity or status as “law” produced by “sovereigns.” Within this new governance territory, there is a growing division between law systems and norm systems, and a growing importance of norm systems as an autonomous source of governance for transnational economic actors.

What is described, effectively, is polycentric norm making among multiple systems of functionally differentiated governance communities that are required to interact with each other in complex and dynamic ways. Incompatible systems, law and norm--must effectively find a way to communicate and to harmonize values and relevance for their constituting communities, whether these are citizens, consumer, employees, or investors. Larry Catá Backer, On Challenges to Operationalizing a Transnational Framework for Business and Human Rights--the View From Geneva, Law at the End of the Day, Oct. 13, 2009.

Beyond the usual small group of governance theorists, most resident outside the United States, these emerging notions seem remote and obtuse, hardly relevant to the realities of the primacy of state based governance of economic entities. But recent determinations of an enforcement organ of the Organization of Economic Cooperation and Development (OECD), the United Kingdom National Contact Point (the “UK-NCP” ) have suggested an emerging framework for application of notions of polycentricity in the governance of transnational economic actors. Two important recent decisions of the UK-NCP were discussed in Larry Catá Backer, Case Note: Rights And Accountability In Development (Raid) V Das Air (21
July 2008) And Global Witness V Afrimex (28 August 2008); Small Steps Toward an Autonomous Transnational Legal System for the Regulation of Multinational Corporations, 10(1) Melbourne Journal of International Law 258 (2009).

Very recently, the UK-NCP issued two related statements that quite dramatically illuminate the contours of the emerging polycentric governance framework for multinational corporations. This essay considers in more detail the analysis of the UK National Contact Point and its implications for global corporate governance. The complainant was a U.K. entity, Survival International, a U.K. NGO seeking to support the efforts of tribal peoples all over the globe through advocacy, education and rights protective campaigns. . The object of these statements was entities related to Vedanta Resources, Inc., a U.K. company operating through subsidiaries and joint ventures in India. . The approach of the UK National Contact point was sweeping. Its pronouncements suggest that the narrowly drawn rules of law systems that limit the standing of stakeholders to seek legal redress on behalf of others are being far more broadly drawn. Initial Assessment by the UK National Contact Point for the OECD Guidelines for Multinational Enterprises: Survival International and Vedanta Resources plc, March 27, 2009 (“Initial Assessment”). They also show the advancing application of a governance framework in which non-state actors are obligated to comply with a set of legal duties defined by the states in which they operate, and in addition are also obligated to comply with an autonomously constituted set of social norms the contours of which are defined by a cluster of soft law grounded in international norms and standards. Final Statement by the UK National Contact Point for the OECD Guidelines for Multinational Enterprises: Complaint from Survival International against Vedanta Resources plc, 25 Sept. 2009 (“Final Statement”). It is to those two significant issues—standing under soft law frameworks and the autonomy of global governance regimes that this short essay addresses.

The general facts are these; Vedanta Resources has a nearly 60% stake in Sterlite Industries (India) Limited (“Sterlite Industries”) based in Mumbai, India, and jointly with Sterlite Industries owns all of the shares of Vedanta Aluminum Limited, based in Lanjigarth (Orissa) India (Vedanta owning 70.5% and Sterlite Industries the other 29.5%). Final Statement, supra, at ¶ 7. The complaint focused on the efforts of Vendanta’s controlled entities to construct a bauxite mine near Lanjigarth, in the Kalahandi and Rayagada Districts of Orissa. Id., ¶ 8.

This project was originally proposed by Sterlite Industries on the basis of an existing agreement between Vedanta Aluminium Limited and Orissa Mining Corporation Limited, a company owned by the State of Orissa. Vedanta Aluminium Limited applied to the Supreme Court of India for clearance on the project. Following the Supreme Court of India’s Order of 23 November 2007, Vedanta Aluminium Limited’s application was dismissed but Sterlite Industries (and only Sterlite Industries) was granted leave to re-apply. In August 2008, the Supreme Court granted Sterlite Industries clearance for the use of forest land for bauxite mining subject to final approval from the Indian Ministry of Environment and Forests. Sterlite Industries therefore formally retains the lead on the Lanjigarh project. Neither Vedanta nor the complainant dispute that overall responsibility for the Lanjigarh project rests with Vedanta. Id.

Survival International argued that irrespective of the actions of the Indian State of Orissa or the determination of the Supreme Court of India in the matter, Vedanta and its controlled entities had failed to meet their obligations under the OECD Guidelines for Multinational Enterprises. Survival Inrternational alleged that “Vedanta has failed to consult with an indigenous group affected by its operations, the Dongria Kondh, who live within 4 to 5 Km from the mine but revere as sacred the area on which the mine is being built, and depend for their livelihood on the area affected by the mine’s operations.” Final Statement, supra, at ¶ 10.A. As a result, Vendanta failed to respect India’s obligations under a number f international treaties (Id., at ¶ 10.B) and not withdstanding the actions of te Indian Supreme Court Vendanta and its controlled subsidiaries and venture partners were also in breach of Indian domestic law, “namely the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act 2006.” (Id., at ¶ 10.C). Taken together, these actions violated several of the Guidelines.

Chapter II. General Policies. Enterprises should take fully into account established policies in the countries in which they operate, and consider the views of other stakeholders. In this regard, enterprises should: . . . II(2): Respect the human rights of those affected by their activities consistent with the host government’s international obligations and commitments. . . . II(7): Develop and apply effective self-regulatory practices and management systems that foster a relationship of confidence and mutual trust between enterprises and the societies in which they operate.
Chapter V. Environment. Enterprises should, within the framework of laws, regulations and administrative practices in the countries in which they operate, and in consideration of relevant international agreements, principles, objectives, and standards, take due account of the need to protect the environment, public health and safety, and generally to conduct their activities in a manner contributing to the wider goal of sustainable development. In particular, enterprises should:. . . . V(2) Taking into account concerns about cost, business confidentiality, and the protection of intellectual property rights: . . . . (Id., at ¶ 11).

Initially, Vedanta challenged the standing of Survival International to bring the complaint and the compatibility of the proceedings in light of the actions of the Indian Supreme Court approving the project. .

Vedanta Resources plc responded that Survival International does not have the necessary interest in the matter to bring a complaint to the NCP. It also contends that the impact on the local community has been considered by the State Government of Orissa (which is a joint venture partner in the mining project) and the Supreme Court of India, which granted permission for the mining project subject to certain conditions for the benefit of the local community, and that it is therefore inappropriate for the UK NCP to consider. Initial Assessment, supra at ¶ 5.

The UK-NCP first broadly read its standing rules to allow the case to be asserted by Survival International in its own right as a defender of the indigenous groups whose rights were allegedly directly affected. First it construed its mandate under the Guidelines broadly. It sourced this position on the “commentary on implementation in specific instances (paragraph 14, page 60 of the OECD Guidelines).” Initial Assessment, supra., at ¶ 9.A. Unstated, but related is another set of commentaries, Commentary on the Implementation Procedures of the OECD Guidelines for Multinational Enterprises, DAFFE/IME/WPG(2000)15/FINAL, paragraph 14 of which provides:

14. In making an initial assessment of whether the issue raised merits further examination, the NCP will need to determine whether the issue is bona fide and relevant to the implementation of the Guidelines. In this context, the NCP will take into account: . . . the identity of the party concerned and its interest in the matter; . . . . whether the consideration of the specific issue would contribute to the purposes and effectiveness of the Guidelines. Id.

The effect of these guidelines could be to suggest a basis of standing other than the one traditionally used to initiate cases before judicial tribunals under domestic law. Instead, rather than injury, the standard is grounded in the merits of the action itself and then on the interest of the party in the matter. As such, interest could be tied more to the ability of the claimant to supply information than to its connection to the claim itself. This is the position taken by the UK-NCP in its own interpretation of its own procedures. It quoted two paragraphs of its procedures:

2.3.1. According to the Guidelines, any “interested party” can file a complaint. The complainant may be, for example, a community affected by a Company’s activities, employees or their trade union, or an NGO. A complainant may act on behalf of identified other parties.” 2.3.2 The NCP will consider all complaints it receives. However the NCP will need to receive detailed information from the complainant in order to deal with the complaint. Therefore, complainants should have a close interest in the case and be in a position to supply information about it. They should also, in accordance with the principles of the Guidelines, have a clear view of the outcome they wish to achieve. Initial Assessment, supra, ¶ 9.A.

If the touchstone of the standing rules is “interest” and the measure is an assessment of the ability of a party to bring evidence to the NCP, then interest reduces itself to the ability to supply information. It follows that the “UK NCP process specifically allows for NGOs, such as Survival International to bring complaints under the Guidelines.” Initial Assessment, supra, at ¶ 9.A. Specifically, the UK-NCP based standing on the ability of the claimant to meet three requirements. First, it must be directly affected or have as its organizational mission the protection of the rights of the specific groups adversely affected by a multinational corporation under the Guidelines. Second, it must have access to al the information necessary for the UK-NCP to make an assessment. Third, standing is buttressed (though not dependent) on acquiring the consent of the directly affected party for the complainant to represent them before the NCP.

The UK NCP considers that Survival International has an interest in this matter because one of its stated objectives is to promote for the public benefit the human rights of indigenous peoples established by UN covenants and declarations. Furthermore, the UK NCP is satisfied that Survival International has submitted sufficient information for the complaint to be accepted which includes research from UK and India-based organisations as well as research by the complainant. In addition, Survival International has provided details of the support they say they have from members of the Dongria Khond in Orissa, the tribe which is the focus of this complaint. Id.

To some extent, the result may not be surprising under English law. See Bernard Schwartz, Lions Over the Throne: The Judicial Revolution in English Administrative Law (New York: NYU Press, 1987) (arguing that the Law Lords “all but eliminated the standing requirement, virtually converting the review action into an actio popularis, which is available to any citizen who seeks to annul improper administrative action.” Id., at 6). A “sufficient interest” standard, for example, has governed applications for judicial review to the High Court Supreme Court Act of 1981 (c. 54), § 31(3), at least in public interest cases. But the expansiveness of cases like Inland Revenue Commissioners v. National Federation of Self-Employed and Small Businesses [1981] 2 All ER93, [1982] AC 617, has its counter in holdings more narrowly based on the traditional aggrieved party standard, especially in the well known case of R. Sec. of State for the Environment, ex parte Rose Theatre Trust [1990] 1 QB 504. Indeed, one can understand the resolution of the standing issue as part of a larger conversation within English legal and political culture over the extent of persons other than those directly affected, that is those whose interests are more remote, to resort to the courts on behalf of themselves and of those directly injured (to use the American term). See, e.g., John B. Bonine, Broadening ‘Standing to Sue’ for Citizen Enforcement, 5(2) Proceedings Fifth International Conference on Environmental Compliance and Enforcement, Monterey, California 1998 (1999). And, indeed, the UK-NCP appears to adopt a standing standard that is consonant with a view of the Guidelines as infused with principles of stakeholder (rather than merely shareholder) entitlement. And, indeed, there were no references to either English legal conceptions of standing or English cases in the UK-NCP’s assessment. To the extent that the UK-NCP drew on these, they were cultural and discretionary rather than legal and mandatory. The UK-NCP meant to draw its own notions of standing from regulatory sources beyond those of English law, and applicable, potentially, by every National Contact Point within the OECD system.

In any case, when compared with the traditional standing rules in American courts, for example—limited standing to those claimants who can show injury in fact, a relation between the injury and the claim or fault, and a showing that the court is in a position to supply a remedy—standing under the framework adopted by the UK-NCP is extremely broad, perhaps broad enough to be manageable. But this makes sense in a context in which social rather than legal norms are at issue. In this context, any person or organization that is affected in some way by the social or political effects of corporate activity ought to have the ability to seek to hold the corporation to its social-norm duties, much like citizens ought to have the right to compel the state to do its duty. Yet this potentially explosive increase in the character and number of potential claimants, all with different views of the injury or its redress, may reduce the value of the system. Corporations prefer at least some level of certainty and predictability in the running of their enterprises. Without that level of certainty and predictability, the transaction costs of business may become high enough to adversely impact economic decision making. Businesses confronted with too great a push toward uncertainty may either attack the system itself, or in the case of soft law systems, evade them or seek a substitute. In this case, for example, Vedanta might fear that, even after resolution of the complaint brought by Survival International, any number of other groups claiming similar “interest” may seek to file similar complaints. At worst this would prove a drain of time and resources. At worst, it suggests the possibility of inconsistent assessments and a reduced possibility of bringing issues like this to closure. It might have been better, in this case, if there had been a greater effort to tie Survival International to the aggrieved parties so that, in effect, the directly affected parties, the Dongria Kondh in this case, would get one chance to make their complaint, whether directly or through civil society representatives.

At the same time, the UK-NCP initially evidenced some discomfort with the idea of raising standards that might conflict with the determinations of the Indian government and its courts. The Contact Point suggested its allegiance to the notion that the “Guidelines are not a substitute for nor should they be considered to override local law and regulation, rather they represent supplementary principles and standards of behaviour of a non-legal character. While the Guidelines may extend beyond the law in many cases, they should not and are not intended to place an enterprise in a situation where it faces conflicting requirements.” Initial Assessment, supra, at ¶ 9.C. But the UK-NCP ultimately decided to proceed on the basis of its assessment that it was still too early to tell if any conflict existed. “It remains unclear to the UK NCP whether any decision it may make in relation to this matter has the potential to conflict with the decisions of the Court and the State Government as it has yet to receive sufficient evidence as to how closely they relate to the issues raised by Survival International.” Id. It is to that issue that I turn to in the next part of this essay.

Transnational Constitutionalism Triumphant: The End of the Honduran Constitutional Crisis

“A constitution without legitimacy is no constitution at all. It is outside the law in the sense that it ought to be respected by the community against which it is applied. . . . Legitimacy is a function of values, which in turn serve as the foundation of constitutionalism.” Larry Catá Backer, From Constitution to Constitutionalism: A Global Framework for Legitimate Public Power Systems, 113(3) Penn State Law Review 671 (2009).

Constitutionalism has come to be understood as a complex systemic ideology of the construction of governance. In its simplest reduction, it can be understood as consisting of five elements: (1) a system of classification, (2) the object of which is to define the key characteristics of constitutions, (3) for the purpose of determining the legitimacy of a constitutional system as conceived or as implemented to provide a principled basis for outsiders (foreign states, entities, individuals) to judge the lawfulness of the constitutional order created and for insiders (citizens) to judge the distance between the ideals of their constitutional system and its reality (and to act thereon), (4) based on the fundamental postulate that the use of governmental power is subject to rule of law limits that are in turn (5) grounded on values derived from a source beyond the control of any individual. (Id.). Constitutionalism rejects the idea that any systematization of governance through a written document styled a “constitution” can legitimate the state apparatus created thereby. At its most basic form, constitutionalism provides a means for erect a high wall between, on the one hand, governance grounded in institutional values and actions centered on the common good, and on the other hand, governance grounded in personal power of individual or ruling cliques centered on the perpetuation of personal or group power. Larry Catá Backer, The Party as Polity, The Communist Party and the Chinese Constitutional State: A Theory of Party-State Constitutionalism 16 Journal of Chinese and Comparative Law -- (forthcoming 2009), at Part II.

The value of constitutionalism as a legitimating device, and therefore, as a lens through which the actions of others against a state may be evaluated, is at the heart of constitutionalist ideology. “This is a crucial evaluation. As Robert Nozick noted, “those legitimately wielding power are entitled, are specially entitled, to wield it.” It follows that the evaluation implicit in constitutionalism has legal and political consequences for the obligations of individuals to conform and other states to respect the organization and actions of a particular entity.” Larry Catá Backer, From Constitution to Constitutionalism: A Global Framework for Legitimate Public Power Systems, 113(3) Penn State Law Review 671 (2009) (citing in part Robert Nozick, Anarchy, State and Utopia 134(1974)).

The source of constitutionalist valies has been changing in the last century. “Once upon a time it was unnecessary to look beyond constitutions. Each represented the highest expression of the individual will of a political community, sovereign to the extent it could defend (and project) that sovereignty among the community of nations.” Larry Catá Backer, From Constitution to Constitutionalism: A Global Framework for Legitimate Public Power Systems, 113(3) Penn State Law Review 671 (2009). I have suggested that a sort of transnational constitutionalism has sought to claim the privilege of arbitrating constitutional values (and thus constitutional legitimacy). That system is transnational and secular. It is grounded in the development of a single system designed to give authoritative expression to the customary values of the community of nations that together make up the values systems of constitutionalism and constitutional legitimacy. Larry Catá Backer, God(s) Over Constitutions: International and Religious Transnational Constitutionalism in the 21st Century, 27 Miss. C. L. Rev. 11, 34-37 (2008). A key element of transnational constitutionalism is “democracy.” Indeed, in the United States, it is not uncommon to understand that there is an important role for “constitutionalism in stabilizing democratic governance in . . . fractured societies. . . because of the limitations it imposes on democratic choice.” Samuel Issacharoff, Constitutonalizing Democracy in Fractured Societies, 82 Tex. L. Rev. 1861 (2004).

The deepening of a culture of transnational constitutionalism within the community of nations is providing an institutional and principled basis permit intervention into the internal affairs of other states where their governments are seen to violate either their own international constitutional orders or the limits on the application of any internal constitutional order suggested by transnational constitutionalist substantive norms. The key element was its power to define legitimate constitutional states in a way that provided both inside stakeholders (citizens) and outsiders (the community of states) with a principled basis for ordering their relations with a government deemed illegitimate.

The Honduran constitutional crisis has proven to be a crucible of the basic parameters of transnational constitutionalism. I have written of this elsewhere. See Larry Catá Backer, The Other Shoe Drops--Brazilian Interventionism in Honduras, Law at the End of the Day, September 23, 2009; Larry Catá Backer, Democracy Part XVIII-- Constitutional Caudillismo: End Games in Honduras, Law at the End of the Day, Sept. 22, 2009; Larry Catá Backer, Reflections on the Declaration of Independence: From a Crisis of U.K. Constitutionalism in the Americas to a Global Constitutional Crisis in Honduras, Law at the End of the Day, July 4, 2009. It has been especially potent in its role as providing a legitimate basis for other states to intervene to preserve the democratic character of the Honduran constitutional order as they (collectively) see it. See, Doug Cassel, Honduras: Coup d’Etat in Constitutional Clothing?, American Society of International Law ASIL Insight 13(9) July 29, 2009, available . That crisis is swiftly coming to an end. Its resolution is greater evidence that transnational constitutionalism in its consequentialist form—as a principle justifying intervention and serving as a basis for judging the legitimacy of a government through “rule of law” analytics—is becoming a more important as a form or methodology of international relations. Politics, like war, becoming to an increasing degree contained by the language and concepts of law.

The end of the crisis was preceded by an announcement, trumpeted in the press. It was announced that “Honduras’ de facto government has bowed to U.S: pressure, accepting a deal that stands to end the four month political crisis and possibly even reinstate Manuel Zelaya as the country’s president.” Adam Thompson, Honduras Accepts Deal to Allow Return of Ousted President, Financial Times, Oct. 31, 2009 at A-4. The driving force for the agreement was neither the Cubans nor the Organization of American States, that had each placed no small role in shaping events. Noticeably absent as well was Brazil—missing its opportunity fr leadership by overplaying its hand near the end. Instead, it was, to some extent, business as usual in Central America-the deal was brokered by Tom Shannon, U.S. Assistant Secretary of State on the basis of credible threats of cutting off (and restarting) the considerable U.S. aid to this small and poor state. Id. Mr. Zelaya gets some of what eh wants—reinstatement as President, for as long as it takes to hold the elections scheduled for the end of November and in due course install the successor President. But he loses tremendously, by agreeing to refrain from “attempting to change the constitution,” the issue that precipitated his ouster this past summer. “On the day he was ousted, Mr. Zelaya had tried to hold a referendum on constitutional changes.” Id. The deal would also require both Mr. Zelaya and his successor, Mr. Micheletti, “to respect the results of presidential elections which are scheduled for November 29.” Id.

Mr. Zelaya and the outsiders who brokered the deal have all hailed the agreement as a triumph. . . .for democracy. Mr. Zelaya “hailed the agreement as a breakthrough. ‘It is a triumph for Honduran democracy,’ he said.” Id. Mrs. Clinton “called the agreement a victory for Latin American democracy.” Id. More telling she acknowledged the pivotal role of transnational constitutional principles as a structural factor for assessing the legitimacy of the intervention on behalf of Mr. Zelaya. “’this is a big step forward for the Inter-American system and for its commitment to democracy,’ she said.” Id. Of course, this sort of triumphalism might encounter a different reaction should it ever be turned in the direction of the United States. Though of course, Honduras will be distinguished; power tends to provide the great exception to any rule. And Mr. Michelleti was more pragmatic. He “told reporters that the deal marked “the beginning of the end of the country’s political situation.” Id.

In the end there was compromise all around—the successors to Mr. Zelaya to ensure the legitimacy of their re-election and the return of aid monies; Mr. Zelaya s that he might return and have the legitimacy of the end of his tenure affirmed; the international community to affirm the authority of its oversight role in the governance of its Member States; and to some extent, the autonomy of the constitutional order of Honduras. But the latter, of course, is the critical element marking the success of regimes of transnational constitutionalism; international norms now more strongly cabin the constitutional orders of nation states—or at least small one in Central America. But importantly, the Honduran constitutional crisis and its resolution also evidences what is emerging as the greatest cure to constitutionalist defect, however induced. . . elections. In this case, all sides see elections as the great crucible from out of which legitimacy will emerge.

Curriculum Reform and Emerging Class Structures in Legal Education

Curriculum reform continues to occupy much thinking within the American legal academy. For a review of some contemporary issues and distinct approaches to resolving them, see, e.g., Larry Catá Backer, Georgia State University Hosts International Conference on the Future of Legal Education, Law at the End of the Day, Feb. 22, 2008. I have suggested my own perspective recently. See, Larry Catá Backer, Some Thoughts at the Start of Curriculum Reform Season in American Law Schools, Law at the End of the Day, Aug. 3, 2009; Larry Catá Backer. These issues have become more acute with the internationalization of the law school curriculum, at least within the elite law schools. See, Larry Catá Backer, Parallel Tracks? Internationalizing the American Law School Curriculum in Light of the Principles in the Carnegie Foundation's 'Educating Lawyers'. Comparative Perspectives on Law and Justice, Vol. 2. These differences in approach will, more than many other factors, begin to deepen the distinctions between elite law schools and the rest. The former will continue to target larger opportunities to its students while its faculties continue to expand the reach of their scholarship and scholarly conversations,. The rest will be expected to supply the needs of local and regional markets--a worthy and important role, but one with diminishing prospects of more meaningful participation in the higher levels of academic and policy discourse. The importance point is not about the value of serving a particular market for lawyers or legal knowledge, but instead about the increasing trend toward stratification and the diminution of broad opportunities across the legal academy. That stratification's, in turn, reflected in approaches to the curriculum. One can, in effect, begin to judge the place of a law school in the status hierarchy as much by its curriculum as one can by the "reputation" of its faculty among its peers.

Chatting with colleagues across the American legal academy over these past several months, has revealed that in many institutions, the focus of curriculum reform is on the first year or 1-L curriculum. It is possible to describe three broadly defined approaches to the construction of a 1-L curriculum that nicely illustrates the way status differences among law schools may be implemented in the form of distinct approaches to curriculum. The Conventional Approach is animated by a traditionalist principle; the 1-L curriculum should be composed entirely of required courses in the substantive areas traditionally taught in the first year. Courses drive this curricular approach, and justifications beyond tradition follow. The Limited Flex Approach is driven by the principle of controlled variety: the 1-L curriculum should include one or more elective options in addition to required courses in the substantive areas traditionally taught in the first year. With this approach traditional courses drive the curriculum but spaces are made available to a limited range of alternative offerings. Yet lacking legitimacy in tradition, some or all possible emerging courses contending for a place within the canon of mandatory courses. Lastly, the Objectives Based Approach inverts the traditional approaches. It starts with objectives and then seeks to find courses that fulfill those objectives irrespective of their prior privileged place within the curricular canon. Applying an objectives principle, the approach incorporates the idea that an appropriate 1-L curriculum ought to be judged by its ability to teach students particular approaches to law rather than a collection of specific substantive fields.

An elaboration of these approaches suggests both their contours and limitations. It suggests that even the most conventional curricular approaches involves a choice that can have effects beyond curriculum.

I. Conventional Approach.

It is relatively easy to generate a typical form of conventional first year curriculum using this approach. It builds on principles and understandings that have been closely guarded by faculties seeking to retain the form of model approaches popular a generation or more ago. It is not merely a conventional approach, but one that permits significant ties to local communities and can leverage off a century's worth of pedagogy. It is, in this sense, the most inexpensive and thoughtless of the variations, that is a variation requiring little thought. It is also the most likely to produce something acceptable to the greatest number of people. It might be usefully referred to as the "good enough" or "respectable" (in a Babbitt kind of sense) approach; both worthy and well worn.

A typical application of this approach might include a set of offerings familiar t all lawyers: Civil Procedure (3-6 credits); Torts (3-4 credits); Criminal Law (3-4 credits); Writing, Research Program (3/4 Plus 3/4 credits); Contracts (4-6 credits); Property (4-5 credits); Constitutional Law (4 credits or 3 Plus 3 credits).

One could, of course, substitute a number of other courses for some of those listed and vary the allotted credits. The end product would still look substantially similar to the usual conventional course of study common among "middle class" law schools. Thus, for example, it might be possible to allocate fewer credits to the "legal practice" course, add or substitute courses in Sales or Criminal Procedure, increase the number of credits allocated to Civil Procedure and extend the course over two semesters (something quite common before the 1990s), or nod to changes in contemporary law by adding "special" courses in Statutory/Regulatory Interpretation (an effort with a spotty track record i many schools over the last twenty years or so), and, of course, the course in some sort of International/Transnational/Comparative Law hybrid.

III. Flexible Approach

An important recent variant of the conventional program of 1-L instruction, increasingly popular with this generation of law faculty offers more flexibility. This provides a nod both to the realities of legal practice and the increasingly dispersed interests of law faculty. Flexibility is built into the program by reducing the number of required 1-L courses and permitting student choice among other offerings. Further variation is possible by either contracting a separate stable of exclusively 1-L electives (this tends to tax faculty resources) or designating one or more upper level courses as suitable for 1-L elective enrollment. Sometimes, the list of eligible courses are limited to "core courses" as such things are understood within the culture and reference frame of a particular faculty. Sometimes the opposite is true--eligible courses include everything but core courses.

These considerations raise of number of issues that tend to serve as barriers to adoption of flexible programs of this kind, or at least they tend to raise the transaction costs of adoption and the administrative costs of running programs like this. These issues, in turn, suggest the reasons that this variant tends to be a "rich school's" program. It also suggests a marker that separates schools fearful that variation in curriculum will adversely affect employment markers for their students, from those with reputations sufficiently well established so that such flexibility will be read as enrichment rather than dissipation of resources. As such, ability to indulge these sorts of programs can be said to be a proxy for approximate position within academic status hierarchies.

Issues raised include; (1) the politics of designating "core courses"; (2) grading; (3) issues of administrative convenience--everything from registration to decisions about course offerings; (4) work load equity and other fairness issues; and (5) resource issues--some faculties have neither have the number of faculty required, nor a sufficient number of faculty qualified to provide a rich and constant offering of these course.

IV. Objectives Based Approach

This approach is quite new and suggests a rethinking of the curriculum in terms of objectives. Those objectives, in turn tend to represent the end product of a hard look at the reality of law practice at the highest levels and its ramifications for the production of law graduates able to operate at any level of `practice. The starting point for this approach are objectives. That is, courses are valuable to the extent they serve the overarching objectives of 1-L legal education. Those objectives, in turn, reflect the sort of legal work that attorneys are now likely to encounter. For many faculties unable to undertake this sort of analysis on their own, or those others that need the validation of "pack leaders", there are the programs being developed at high tier or academically vetted "progress leaders." Among these are the usual suspects, for example, Harvard Law School or the University of California--Irvine tend to provide comfort or validation, but other elite schools with benchmark leader reputations (that is those that non leader faculties might safely follow) will do as well.

Among pedagogical objectives sometimes privileged in this analysis are procedural analysis; common law analysis; statutory analysis; constitutional analysis; and legal research and writing. For more sophisticated faculties, international/transnational systems and analysis are also sometimes included. The latter, depending on the experience and abilities of the faculty might constitute either its own separate objective category or be deemed "immanent"--that is to be folded into other objectives to the best ability of those assigned that task. Additional objectives can include: problem solving; private ordering systems; governmental regulation of private relationships; criminal wrongs; written forms of analysis; interpretation of positive law; interdisciplinary analysis; professional Responsibility; constitutional limits on investigation and prosecution of criminal cases; written and oral communication; practical skills; client communication; multicultural competence; values.; experiential learning; and interpersonal skills.

One can see how easy it might be to get carried away--a constant danger among faculties trained in that art form. The process comes full circle in some places where included among these objective based curriculum design programs are things like bar passage, sometimes thought to be the animating objective underlying the Conventional Approach. More interesting still, though is the possibility that an objectives based approach might be used to mask traditional faculty disputes about course ordering. The larger and vaguer the objectives, of course, the more likely that virtually any course or no course will fit the bill. Thus this approach might reduce itself to anarchy or to a cloak over the reaffirmation of more traditional curricula. For all that, I remain a fan, in appropriate circumstances and within appropriately constituted faculties. See, Larry Catá Backer, Some Thoughts at the Start of Curriculum Reform Season in American Law Schools, Law at the End of the Day, Aug. 3, 2009. Yet, the Objectives Based Approach is not for all faculties, nor for all Law Schools. The choice is as much a proxy for status, and therefore repetitional horizon as are LSAT and GPA scores of students or some third party ranking system.

But then, that is my fundamental point. Legal education is fracturing along "class" lines. Elite schools will have the greatest opportunity to develop and implement new programs without sanction. Other schools with fewer resources will have trouble catching up. And eventually it may be possible to segregate schools as much by the curriculum they (have the means to) adopt as by any other marker. And as law schools fracture in this way, the opportunities for students and faculties to participate in the life of the law--as lawyers, academics, and policy, or to serve in the judiciary or government, will also fracture. In ways that are informally true enough today but will be more explicit in the future, the choice of a law school to study or teach will also increasingly serve to define the parameters (and limits) of a career.

Remodeling Kenya's Political System on a Chinese Foundation

I have suggested the importance of the Chinese model of state organization for both constitutionalist theory and the organization of states on the basis of a rule of law order quite distinct from that natural in the West. See, Larry Catá Backer, The Rule of Law, the Chinese Communist Party, and Ideological Campaigns: Sange Daibiao (the 'Three Represents'), Socialist Rule of Law, and Modern Chinese Constitutionalism. Journal of Transnational Law and Contemporary Problems, Vol. 16, No. 1, 2006; Larry Catá Backer, The Party as Polity, the Communist Party, and the Chinese Constitutional State: A Theory of State-Party Constitutionalism (January 10, 2009). Journal of Chinese and Comparative Law, Vol. 16, No. 1, 2009; Penn State Legal Studies Research Paper No. 05-2009. For an oral summary, see the recently posted, Larry Catá Backer, Podcast of Presentation at Penn State: "The Party as Polity", Law at the End of the Day, Oct. 21, 2009.

It is clear that China's political model is potentially transposable to other states, assuming the right conditions and capacity for absorption within indigenous political culture. China's recent projection of economic power appears to have also increased interest in the transposition of China's political system to Africa. Recently Kenyan political elites from Kenya's Orange Democratic Movement have begun considering the potential for transposing elements of the Chinese system to Kenya.

Musalia Mudavadi, a senior leader of Kenya's Orange Democratic Movement (ODM) party, said here Tuesday that his party wants to learn from the ruling experience of the Communist Party of China (CPC).

Invited by the CPC, a delegation from ODM, led by Mudavadi, is visiting China from Oct. 14 to 21.

The ODM, which was founded in 2005, became one of the ruling parties in Kenya in 2008, with Raila Odinga, leader of the ODM as prime minister in a grand coalition government, and Mudavadi as deputy prime minister. Kenyan ODM party leader says hopes to learn from CPC's ruling experience, News of the Communist Party of China, Oct. 21, 2009.

This is an interesting development. On the one hand, it is possible that there is value in trans posing the Chinese state organization system to African states. A system based on a division of authority between the state organs, responsible for the administration of the state apparatus, and a "party in power" asserting political leadership within the rule of law framework of its own internal organization and the legal ordering of the state as whole, memorialized in a constitution, may be a useful disciplinary framework for African politics.

On the other hand, Africa has a sad history of following a Stalinist path in the conversion of Marxist Leninist theory to the construciton of state organs. Sadly, that transformation of political theory into cults of personality applied as well to transposition of Western democratic systems as well. It was not so long ago that African states started to rid themselves of their "big men." See, e.g., Alec Russell, Big Men, Little People: The Leaders Who Defined Africa (New York: NYU Press, 2000). And that form of political organization has attracted a substantial amount of international disapproval and juridical consequences.

Since the re-birth of the demands for greater democracy around 1990, Africa has moved unsteadily away from the single-party, single-leader model of rule even if free and fair elections have not been warmly embraced by many of its leaders. If [former Kenyan] President Moi's retirement and his acceptance, so far, of the result of the election, means Kenya is moving in the direction of those African countries where leaders do step down before they are pushed or before they die. But a political process is underway in Africa that hardly existed 15 or 20 years ago. Parties can campaign vigorously; presidents do accept defeat in votes and step down; and chosen successors do not always allow their previous leaders to pull the strings from behind the scenes - all examples that Africa has changed and is still changing. There might be a long way to go - but 20 years ago there would have been no question of President Moi stepping down and having to accept the defeat of his chosen heir.Keith Sumerville, Africa's Big Men and the Ballot, BBC News Online, Dec. 31, 2002.

More importantly, prior failed attempts at single party rule through big personalities has brought a measure of corruption and a consequential judicial condemnation, especially in Kenya. All of this is well captured in a recent corruption case out of Kenya, World Duty Free, Ltd. V. Republic of Kenya (ICSID, Oct. 2006) (holding at ¶¶ 180-182). The arbitral tribunal of the International Center for Settlement of Investment Disputes (ICSID) determined that an individual businessman (a citizen of Canada based in Dubai) could not enforce a contract with the Republic of Kenya that he had secured by paying $2 million to former President Daniel arap Moi.

So, one can only hope that if Kenya means to abandon the sort of Western style transnational constitutonalist framework within which its political system has been developing for some time and embrace a "party in power" system, that it take the time to adequately absorb the lessons of the Chinese system, and not merely pander to China for the purpose of securing more favorable trade terms. It is noteworthy that the ODM mixed politics and economic organization with trade talks. "Besides Beijing, the delegation also visited Hunan Province in central China to see the CPC's organizing structures in rural areas. The delegation also visited farms and agricultural machinery companies in Hunan. He hoped that Kenya could cooperate with China National Hybrid Rice R&D Center to product more rice in Africa." Kenyan ODM party leader says hopes to learn from CPC's ruling experience, supra.

More disastrous still would be the use of a Chinese political form as a cover for the reintroduction of systems of personal rule. Still more important, it is not clear that any move toward "party in power" governance and the separation of political leadership from the organization of government will be possible while political parties represent ethnic factions rather than class or other national elements. For an interesting suggestion along those lines see, Karega-Mûnene, Polarisation of politics in Kenya along ethnic lines, 18(1-2) Wajibu (May-July 2003); Godfrey Mwakikagile, Ethnic Politics in Kenya and Nigeria (Nova Science Publishers, Incorporated, 2001). The importance of the ethnic element in what passes for politics in Kenya is not something to be lightly dismissed. Nor is the violence that is grounded in political divisions that mirror ethnic-national loyalties. See, Larry Catá Backer, Democracy Part IX: Participation and Ethnic Rifts in Kenya, Law at the End of the Day, Jan. 28, 2008.

For China there is an additional danger as well. Association with known foreign elements of ethnic politics can cause embarrassment and ill affect Chinese foreign policy. Under the guise of interest in its political systems, Kenyan political/ethnic parties might seek to draw China into Kenya's divisive internal ethnic wars. In that warfare, it is not clear that there are any clear good choices for China. Indeed, it was not so long ago that members of both the ruling party and the ODM were accused of participation in ethnic fragmentation politics and the violence associated with it.

A government-sponsored commission in Kenya has accused a number of top-level officials of inciting and funding ethnic violence in the country that left thousands dead and hundreds of thousands displaced following disputed elections late last year. . . .It makes allegations against 219 persons, including many government ministers. . . . Most of the accused are supporters of the Orange Democratic Movement, or ODM, whose leader, Raila Odinga, nonetheless supported the establishment of a tribunal to try those politicians responsible for inciting the post-election violence. Odinga, who is not accused, belongs to the Luo tribe. In the run-up to the elections, the ODM forged a multitribal alliance against the Kikuyu, who have been regarded as economically and politically powerful since the 1960s. In last December’s elections, the Kikuyu mainly supported the incumbent president, Mwai Kibaki, whose Party of National Unity was thought by many Kenyans and outside observers to have rigged the polls. Their names are included in the "Schedule of Alleged Perpetrators," a 54-page appendix to the report of the Kenya National Commission on Human Rights, or KNCHR, on violence related to the country’s December 2007. Travis Kabulla, Report Accuses Top Officials for Post-Elections Ethnic Violence in Kenya, Fox News, Oct. 25, 2008.

So something as simple, and as appealing, as interest in transposing a political model, might, in reality, pose substantial dangers and raise complex issues of politics, internal relations, and the unsolved problems of Africa. On the one hand, the ODM may see in the Chinese model a way to construct a multi-ethnic state by shifting the hierarchy of power from ethnic membership to Party membership. While this is inconsistent with Western models of mass democratic states, it may provide a basis for shifting power hierarchies necessary for the construction of a single political state from the amalgamation of pre-colonial tribal-nations now forced to live with each other in a single state. But that movement by the ODM appears to exclude the ruling Kikuyu and thus provide a cover for ethnic violence and division by other means.

At the same time, others are seeking to apply traditional Western theories to construct a traditionally legitimate multi party state system of political culture from out of the ethnic divisions in Kenya. See, for example, the work of the Netherlands Institute for Multi-Party Democracy ("In the aftermath of the troubled 2007 elections, NIMD’s Kenyan partner, the Centre for Multiparty Democracy (CMD-K) played a visible and constructive role in fostering a multi-actor dialogue. The centre brings together political and civil society around a democratic reform agenda, and is currently working to build consensus for constitutional reforms." Id.). What this suggests is the possibility of competition for control of the fundamental framework for political organization in Kenya that may also acquire an ethnic dimension. In any case, China may soon discover these difficulties first hand in ways that will mirror the road to similar discovery experienced by the Soviets, British and Americans in the last century. In order to adopt a state-party model with Kenyan characteristics, transposing the potentially valuable and system-legitimating lessons of Chinese political forms, one first needs a state rather than a collection of ethnic states vying with each other for control of the state apparatus. To use the Chinese State-Party political framework to disguise efforts by one ethnic group (reconstituted as a party in power) to dominate others and control the state for the benefit of their own ethnic "nation" would exacerbate the political fracture in Kenya in a way that would weaken the legitimacy of the Chinese model.

Podcast of Presentation at Penn State: "The Party as Polity"

I recently presented my paper, “The Party as Polity, the Communist Party, and the Chinese Constitutional State: A Theory of State-Party Constitutionalism,” as part of Pennsylvania State University Law School's Scholarly Dialogue's program. In this work I sought to apply emerging principles of constitutional theory to the party-state model of governance in China, and to articulate a way that state-party governance and the traditional western understanding of a constitutional guarantee of the rule of law can co-exist.

A podcast of the presentation be accessed by clicking HERE.

The abstract of the work follows:

The Party as Polity, the Communist Party, and the Chinese Constitutional State: A Theory of State-Party Constitutionalism

Larry Catá Backer
Pennsylvania State University - Dickinson School of Law
Abstract:
Since the establishment of the Soviet Union, constitutional theory has tended to look suspiciously at the constitutionalization of Marxist Leninist state apparatus under the control of a single party in power. There is a sense of illegitimacy, and a suggestion of the construction of sham constitutions, in regimes in which the ultimate state power is vested in an apparatus which itself is subject to the direction of an extra constitutional power, which in turn is meant to mask personal rule. These judgments have formed the basis of analysis of Chinese constitutionalism as well, serving as the foundations for critique especially after the reforms of Deng Xiaping and his successors after 1989. But are these criticisms inevitably correct in general, and wholly applicable in the post 1989 Chinese context? This paper explores those questions, suggesting a basis for the articulation of a legitimizing constitutionalist theory for states organized on a state-party model along certain lines. Focusing on the evolution of state-party constitutionalism in China since 1989, the article first reviews the basic principles of current constitutionalism theory and its importance as a legitimating global ideology against which state organization, and the actions of state officials, are judged. The article then looks to the evolution of the party-state model of governance from its origins in 19th century European Marxist-Leninist theory to its reception in China in the 1920s, and its modern transformation “under the guidance of Marxism-Leninism, Mao Zedong Thought, Deng Xiaoping Theory and the important thought of 'Three Represents'” (PRC Constitution 2004, Preamble). Drawing from the implications of the evolution of theories of state-party constitutionalism in China, the article suggests that it is possible to theorize a state-party model of state organization that remains true to the ideals of constitutionalism grounded in the core postulate of rule of law governance. This argument is based on an understanding of the relationship between state and Party grounded in (1) a division between economic and social citizenship, which is the right of all persons, and political citizenship, which can be exercised through the Party though not exclusively in the Party, (2) an understanding of political organization in which the state power and its institutions are subordinate to political authority, (3) an institutionalization of political authority within a collective that serves as the source and conduit of constitutional values to be applied by the holders of state authority, and (4) a system in which Party elaboration of rule of law values is contingent on state and party self discipline. Rule of law constitutionalism in China, then, is better understood as state-party constitutionalism, with a necessary focus on party rather than state, grounded in separation of powers principles in which the administrative function is vested in the state and political authority over all is vested in the Party under law.

自 前苏联 成立以来，宪政理论始终试图以怀疑的目光审视一党专政之下的马克思列宁主义国家政权。当国家的最高权力被授予某一个机构，而这个机构受制于一种超越宪法的 外力，并且这种外力意味着个人统治的面具，这时，这个国家的宪法被认为是不合法并且是虚伪的。当国家受制于政党，而政党成为个人权力博弈的平台，那么这种 “党国”体系逐渐被理解为专制与暴政的傀儡、个人或小集团统治的面纱。这样的“党国”体系由暴力机关和内部恐怖机构的强制力支持着，依照个人或小集团反复 无常的念头统治着国家。在这种背景下，宪政是不可理解的。同样的，这些评判形成了分析中国宪政的基础。特别是在看待邓小平和他1989年以后的继任者们的 改革方面，这些评判已作为批评中国宪政的基础理论。然而，这些批评成立、并且普遍适用于1989年之后的中国社会现实吗？本文将探讨这些问题，并提出一种 理论基础——遵循一定的路线，如何使建立在“党国”模式之上的国家的宪政法制化。本文关注中国1989年之后的“党国”宪政的演进，并首先回顾现代宪政理 论的基本原则，以及它作为评判国家组织形式、政府官员行为的国际意识形态标准的重要性。接下来，本文将目光投向“党国”模式的演进——从它的源头，十九世 纪欧洲的马克思列宁主义思想，到它被二十世界二十年代的中国接受，再到它在当今中国“马列主义毛泽东思想、邓小平理论以及三个代表重要思想引导下” （摘自2004年中华人民共和国宪法，序言）发生的转变。根据这样的演进，本文指出，在理论上构建一个以依法治国为基础的“党国”模式的政权，并不悖宪政 原则，是可行的。中国的“党国”宪政理论需要重新定义宪法——这样的宪法需要囊括组织国家政权的文件，同时也囊括组织一个平行与国家权力的政党的文件。这 同样建立在对于共产党属性的不同理解上——不是一个政党或私人行为者，而是政府结构的内部组成部分，更重要的是，作为政治公民权的持有人。本文最后将使用 全球的宪政标准来衡量中国的宪政，并依据以上观点得出结论。这些包括对于“党国”结构的思考：（1）划分不同的公民权—— 不同于社会与经济公民权，政治公民权由政党来支配；（2）国家权力和制度从属于政治权威；（3）多党制被作为实现宪政价值的资源与渠道；（4）在这个体制 中，法制依靠国家于党的自律。中国的宪政，作为“党国”的宪政，可以用来理解依法治国。在这样的依法治国概念中，宪政约束的重点不是国家机器，而是政党组 织。由此，中国的宪政法制，应当理解为“党国”的宪政。从而，“党国”体系可以被称为一种合法的宪政体系，虽然它的实质价值有别世俗的、国际的宪政。这就 是有中国特色的宪政。

On Challenges to Operationalizing a Transnational Framework for Business and Human Rights--the View From Geneva

"On 5-6 October 2009, the Office of the UN High Commissioner for Human Rights (OHCHR) held a consultation: "Operationalizing the framework for business and human rights presented by the Special Representative" -- the "Protect, Respect, Remedy" framework [PDF] proposed by Special Representative Ruggie in his 2008 report to the UN Human Rights Council." Business and Human Rights Resource Center, Consultation on Operationalizing the Ruggie Framework--Geneva, 5-6 October 2009.

The Background to the Consultation was explained in the Draft Program:

In resolution 8/7 the Human Rights Council requested that the Office of the United Nations High Commissioner for Human Rights to organize a two day consultation, bringing together the Special Representative of the Secretary-General on the issue of human rights and transnational corporations and other business enterprises, business representatives and all relevant stakeholders, including non-governmental organizations and representatives of victims of corporate abuse, to discuss ways and means to operationalize the “Protect, Respect, and Remedy” framework on business and human rights put forward by the Special Representative. Each session will be addressed by 3-4 panelists who will make brief presentations, followed by interventions from the floor. It is anticipated that there will be around one hour of open discussion and interventions from participants during each panel session. The consultation is open to all individuals and organisations who registers in advance . . . Non-governmental organizations without ECOSOC accreditation need to submit the accreditation form. (Draft agenda & registration details)

Most interesting and worth reflection were the remarks of John Ruggie, Opening remarks by UN Special Representative John Ruggie, October 5, 2009, and those of Opening statement by UN High Commissioner for Human Rights Navanethem Pillay, Oct. 5, 2009. Stakeholder contributions may be accessed as well. This essay will briefly consider Mr. Ruggie's remarks.

After setting the stage, Mr. Ruggie focused on two significant issues facing an effort to implement any system of governance of business enterprises at the supra-national level--(1) implementation challenges; and (2) alternative approaches.

Mr. Ruggie identified five key challenges to the framework he has been developing. The first touches on the issue of framework scope. Here the great difficulty is defining the scope of the obligations to be imposed, formally and socially, on enterprises. There is a great tension between the need for precision and certainty--the great foundation of law systems--and the reality that in practice all activity is intimately interconnected--the foundation of systems of social or customary norm systems.

Therefore, the quest to construct ex ante a delimited list of business-specific rights for which companies would have some responsibility is a fool’s errand. Virtually all rights are relevant, though some may be more so than others in particular circumstances. This fact needs to inform the policies of states and companies alike. Opening remarks by UN Special Representative John Ruggie, October 5, 2009, at 2.

Mr. Ruggie rejects legal formalism as the sole basis for the construction of the social framework for business conduct.

The second challenge flows from the first. If the normative basis of law systems is fundamentally inadequate, those political systems grounded solely in such systems must, by definition, also share the similar inadequacies. The principal inadequacy identified by Mr. Ruggie was what he termed legal and policy incoherence. "Governments currently lack adequate policies and regulatory arrangements for fully managing the complex business and human rights agenda. Although some states are moving in the right direction, overall their practices exhibit substantial legal and policy incoherence. " Id. More particularly, Mr. Ruggie points to the ease with which governments have become trapped by the complexity of its operations in a global environment, what he terms "horizontal incoherence. The point was driven home with an example:

Not long ago, the government of South Africa was confronted with a startling instance of how serious this lack of policy coherence can be when investors from Italy and Luxembourg took it to binding international arbitration under a bilateral investment treaty. The investors claim that certain mining provisions of the Black Economic Empowerment Act amount to expropriation, entitling them to compensation. Why did the government sign up in the first place to an investment agreement that could threaten the country’s post-apartheid foundational principle of social justice? An official policy review explains that, among other reasons, “the Executive had not been fully apprised of all the possible consequences of BITs,” including for human rights. Id., at 2-3.

All the same, it is interesting that governments appear to suffer from this horizontal regulatory incoherence to an extent significantly greater than other large organizations--for example the large multinational enterprises that appear to be able to take advantage of sloppy government and the structural limitations of law based systems. But that is not the case universally. Large , rich, well run multinationals, like states with well developed and expensive-to-maintain governmental bureaucracies, are better able to avoid incoherence, than either poorer multinational enterprises or poorer or less developed states. That provides an irony of sorts--large multinational enterprises are more similar in their organization and operation to more developed states than either are to their poorer and less well developed counterparts.

The third challenge flows from this insight. If at least the most advanced multinational enterprises are the functional equivalent of states, then they ought to undertake burdens commensurate with their power and effects.

With rare exceptions, even large multinational companies lack fully- fledged internal governance and management systems for conducting adequate human rights due diligence. Their approach in a sense has been highly “legalistic”: focused on the requirements of their legal license to operate, and only slowly discovering that in many situations meeting legal requirements alone may fall short of the universal expectation that they operate with respect for human rights—especially, but not only, where laws are inadequate or not enforced. Respecting rights is the very foundation of a company’s social license to operate. Id., at 3.

Mr. Ruggie makes the quite sensible point that large and powerful enterprises cannot on the one hand protect their power to operate unhampered within a framework of social norm systems, and at the same time invoke their formalist subordination to states under legal norm systems. Yet the consequences may be profound for the relationship between state based law systems and transnational norm systems (and the related social license construct). This tension is most profoundly felt in efforts like the OECD Risk Awareness Tool for Multinational Enterprises in Weak Governance Zones (2006).

If multinational enterprises are bound by a social norm, rather than merely a law, structure, Mr,Ruggie suggests in his fourth challenge, then such enterprises are bound to provide an adequate mechanism for enforcing its norm obligations. "In effect, this replicates the “legalistic” approach I’ve just described: if it isn’t required by law, we don’t need to do it. Companies thereby deny those who are adversely affected by their activities an opportunity to resolve issues that may be readily remediable." Id., at 3.

This brings Mr. Ruggie to his last challenge, one that embraces the implication that there is a greater difference between developed and developing states than may be between developed states and advanced multinational enterprises. "The incidence of corporate-related human rights abuse is higher in countries with weak governance institutions: local laws either do not exist or are not enforced, even where the country in question may have ratified all the relevant international human rights conventions. The worst cases occur amid armed conflict over the control of territory or of the government itself." Id., at 3. The insights from the OECD Risk Awareness Tool now better reveal their governance implications. That is meant to substitute multinational governance, through self governance in its relationship with others, for law systems within territories in which the state is largely marginal. This is meant to avoid the problem of a blind adherence to a hierarchy of rule system that always posits the supremacy of law systems even where the state is effectively absent. "Such contexts attract marginal and illicit enterprises, which treat them as law-free zones." Id.

Yet the state is not absent from this analysis--rather, Mr. Ruggie suggests a more horizontal relationship among governance institutions, again grounded in the necessary relations between law systems (the state) and norm systems (the enterprise). "The use of extraterritorial jurisdiction might be one way to close such impunity gaps, but it also raises legitimate concerns on the part of states and business. In the absence of other widely applicable tools, the U.S. Alien Tort Statute has become a de facto ultimate recourse. . . This is far from a systemic solution— which needs to include greater enforcement of existing laws, clearer standards and more innovative policy responses by both home and host states. " Id., at 3-4.

The challenges serve as foundation for discussion of alternatives. Mr. Ruggie describes the two traditional approaches and their champions--"Human rights advocates favor binding standards imposed on companies directly under international law. Business traditionally has favored voluntary initiatives coupled with the identification of best practices and the development of management tools, arguing that the market itself will drive the process of change." Id., at 4. Mr. Ruggie suggests both are inadequate. The rationale flows naturally from the presumption that states, like multinational enterprises, are subject BOTH to law systems and norm systems that exist in a complex set of entwined horizontal relationships. Translated back into the language of common discourse, Mr. Ruggie puts it this way:

A pure model of self-regulation beyond compliance with national laws lacks prima facie credibility. We live in a world of 192 nation states, 80,000 multinational corporations, millions of affiliates and suppliers, and countless other firms, large and small. There is not enough magic in any marketplace, real or imaginary, to overcome the staggering collective action problems.

As for imposing binding substantive human rights standards on companies directly under international law, that would require a treaty. And if we take seriously the fact that corporations can affect all human rights, as I do, then the treaty would have to include such standards for companies in relation to all internationally recognized rights. . . . First, why would states, North and South, which do not accept all international human rights standards for themselves, agree to subject their companies, multinational and national, to such standards under international law? Second, leaving that issue aside, would the standards in such a treaty likely be higher or lower than the highest standards companies have in place today? . . . . Third, how would such a treaty be enforced? Would it include a new international court for companies as legal persons? No one seriously expects that to materialize any time soon. . . . Fourth, major treaties on complex and controversial subjects require decades for the subject to ripen and negotiations to conclude.Id., at 4-5.

That leaves Mr. Ruggie in essentially new territory--one that rejects the monopoly of law systems within states and the conception of norm systems as non-binding.

The “protect, respect and remedy” framework lays the foundations for generating the necessary means to advance the business and human rights agenda. It spells out differentiated yet complementary roles and responsibilities for states and companies, and it includes the element of remedy for when things go wrong. It is systemic in character, meaning that the component parts are intended to support and reinforce one another, creating a dynamic process of cumulative progress—one that does not foreclose additional longer-term meaningful measures. Id., at 5

What is described, effectively, is polycentric norm making among multiple systems of functionally differentiated governance communities that are required to interact with each other in complex and dynamic ways. Incompatible systems, law and norm--must effectively find a way to communicate and to harmonize values and relevance for their constituting communities, whether these are citizens, consumer, employees, or investors. "In a diverse set of sectors serious empirical research has now shown that polycentric systems tend to outperform monocentric systems governing similar ecological, urban, and social systems. Empirical studies of the vulnerability of differently linked social-biophysical systems are highly likely to demonstrate that governance systems composed of multiple units at multiple scales of organisations are less vulnerable to many types of external shocks than centralized systems."Elinor Ostrom, Vulnerability and Polycentric Governance Systems, Newsletter of the International Human Dimensions Programme on Global Environmental Change, Nr. 3/2001 ("polycentric governance systems are frequently criticized for being too complex, redundant, and lacking a central direction when viewed from a static, simple-systems perspective. They have considerable strengths when viewed from a dynamic, complex-systems perspective, particularly one that is concerned with the vulnerability of governance systems to external shocks." Id.). See also, Larry Catá Backer, Governance Without Government: A Preliminary Overview, Law at the End of the Day, June 16, 2009;

But the framework is not yet ready for deployment. Mr. Ruggie emphasized: "Now, I am not foolish enough, or so arrogant, as to believe that the “protect, respect and remedy” framework answers all our prayers. In fact, our journey has just begun. But I think it’s fair to say that we have come remarkably far in a relatively short period of time. And judging from these and other examples of uptake, I believe we can draw the conclusion that we are heading in." ID., at 6.