Selected published book chapters may be accessed here:
“From Guiding Principles to Interpretive Organizations: Developing a Framework for Applying the UNGPs to Disputes that Institutionalizes the Advocacy Role of Civil Society” (SSRN HERE) in Business and Human Rights: Beyond the End of the Beginning (César Rodríguez-Garavito, ed., Cambridge University Press, 2017), ACCESS HERE:BackerFromGuidingPrinciples2017
Larry Catá Backer
Abstract: Global human rights NGOs evidence the power and temptations of the great normative institutional forces that affect the governance projects of transnational society in the early 21st century. These forces — (1) the drive for order and rationality even within emerging polycentric orders beyond the state, and (2) the transformation of the individual within this polycentric universe from singular being to disembodied abstraction made flesh in the body of civil society — are irresistible. The chapter’s thesis is this: the logic of emerging meta-governance points to the need to establish a central mechanism for the interpretation of transnational normative governance instruments and particularly the United Nations Guiding Principles for Business and Human Rights (UNGPs), and the logic of emerging mass governance principles points to the need to vest representative civil society organizations with the authority to bring cases and advocate before such an interpretive body. Movements to develop comprehensive treaty structures pose a threat to the establishment of a workable transnational order compatible with the realities of contemporary governance. This chapter considers both the challenges of the arguments for the institutionalization of NGOs within the normative framework of the UNGPs and the strengths of their critique of the Working Group on human rights and transnational corporations and other business enterprises (WG) for missed opportunities. Two of these opportunities, to date ignored, are worthy of serious development. The first is a facility for delivering interpretations of the GPs whether or not deemed binding by state or enterprise instrumentalities at the international level. The second, drawing from the first, would incorporate civil society as a key representative of individuals seeking an interpretation of the INGPs in particular contexts. It follows that the application-interpretation facility requires not just the establishment not just of an institutional framework for providing a means of hearing specific complaints, but one in which individuals could bring these complaints through representative civil society for determination of the application of the GPs in context. The object is to more fully develop the UNGP’s remedial third pillar through the creation of an internationally based autonomous source of process and governance that raises the stakeholder status of individuals, now represented by a civil society sector under the third pillar that states enjoy under the first pillar and enterprises enjoy under the second. The way to that goal requires substantial development, but its value appears clear.
“Governance Polycentrism or Regulated Self-Regulation—Rule Systems for Human Rights Impacts of Economic Activity Where National, Private and International Regimes Collide,” (SSRN HERE) in Contested Collisions: Interdisciplinary Inquiries into Norm Fragmentation in World Society 198-225 (Kerstin Blome, Hannah Franzki, Andreas Fischer-Lescano, Nora Markard and Stefan Oeter, eds., Cambridge University Press, 2016). ISBN 978-1-107-12657-2. ACCESS HERE: Backer_GovernPolycentrism_RegimeCollisions2016
Larry Catá Backer
Abstract: The development of governance regimes for the human rights impacts of economic activity has been at the center of the evolution of governance where multiple legal and non-legal systems simultaneously apply. The contribution considers the extent to which it is possible to order the many layers of governance (law, soft law, normative standards, individual practices, contractual arrangements, custom, etc.) that together constitute the emerging “law” of human rights impacts of business activity. This layering and simultaneous application of rules (polycentricity) is likely to produce conflict or contraction (rule regime collisions) that must be mediated. Failures of mediation can impede the operation of the system to produce a coherent management of behaviors. Conventional law produced and enforced through the mechanisms available to conventionally constituted states do not serve this transnational project well. Conventional law tends to be static and substantially bound by the territory form which it emerges and in which it applies with the greatest force. The contribution thus poses the question: how is it possible to produce regulatory coherence in a system which lacks an ordering center but operates through multiple regulatory systems simultaneously? Part I considers the structures and premises of the emerging governance framework built into the United Nations Guiding Principles for Business and Human Rights (UNGP), and the three pillar framework from which it arose (state duty to protect, corporate responsibility to respect, and effective remedies for adverse effects of human rights), as it has been incorporated into the Organization for Economic Cooperation and Development Guidelines for Multinational Enterprises. Part II then challenges the formal logic of the theory polycentric anarchy with a consideration of the functional effects of implementation. Governance in action may not so much produce spaces for managed polycentric collision as it links politically posited law and private governance in what could be called an externally regulated self-regulation. In particular, Gunther Teubner’s notion of self-constitutionalizing regimes founded not on polycentricity as order without a center, but rather as the construct of a network of linkages that produces both self constitution and dependent autonomy. The linkages that tie the governance systems of states, enterprises and international bodies in the regulation of the human rights effects of economic activity, then, have substance. These linkages do not produce order formally, but they do have the functional effect of ordering relations among autonomous actors based on the effects of their communicative interventions. It is in the understanding of the character of those linkages, as anarchic sites for mediation of collision or as the form of new multi-systemic hierarchies of regulation, that one can see emerge the nature of “law” in the 21st century.
Keywords: human rights, multinational corporations, transnational corporations, Guiding Principles, OECD Guidelines for Multinationals
JEL Classification: D74, K22, M14