Globalization has been changing the structures and discursive frameworks of governance. The post 1945 globalization frameworks had the modest goals of reducing the risk of war through international trade and political networks, increasing the authority of law to develop global legal barriers to violent conflict and the protection of individuals, and institutionalizing systems of consensus based global normative values. By 2016, it is clear that these goals were exceeded far beyond the imagining of those architects. The systems for the regulation of trade, finance, human rights, and the relations among peoples and states that have emerged since then have transformed the old political order. Globalization has transformed the state and its constitutional ordering, limiting the power of states to make war on their own people or their neighbors. Globalization has reshaped the societal sphere and its disciplinary role in ordering behavior. Societal organizations now have greater authority to shape the rules that govern production chains and their stakeholders. Globalization has transformed the enterprise from a dependent to an autonomous governance organ both within and outside the state. Globalization restructured the international sphere as both a source of normative value and of regulatory governance in its own right. International organizations have become an important source of rules and, indirectly, of law.
Globalization has transformed the relationship between the individual and all of these organs of aggregated power as global discourse has moved from the protection of the state to the human rights of individuals. The response to the collapse of the Rana Plaza factory building, to the construction of soccer stadiums under conditions of labor exploitation, or to the financing of the palm oil industry in East Asia; each of these suggest the ways in which the transformation of state, societal sphere, enterprise, international organs and the individual now intersect in regulatory responses that burst through the carefully constructed field boundaries of law and between law, politics and economics. But they also suggest the way that these transformations are built around a new normative center—the ordering principle of human dignity that is understood as rights inherent in the individual and obligations/responsibilities at the core of the legitimacy of institutional organizations. I propose to examine the evolution of these regulatory responses and their theoretical ordering.
My reseach examines the modalities of this convergence of global regulatory governance trends around the conception of human dignity as rights inherent in the individual, as duties of states, and as responsibilities of other regulatory organs. I try to weave together emerging strands of governance to produce a better understanding of the structures of governance that have arisen as a product of globalization, the threats to that development, and the way that the evolution of the rise and regulation of corporate social responsibility (and especially its normative basis in human rights) provides its most important expression. The object is to explain the new governance structures and the ways in which they order human rights from out of the context of economic activity.
My research proceeds from facts to practice to theory, and then back again to practice and facts. The object is to ground theory in facts and to shape it so that it is useful to those charged with operationalizing the principles that structure and constrain our economic, political, social and religious systems to more effectively move that work forward. My prior work points to a framework for conceptualization and the scope of the enterprise. The approach is guided, to some extent, by a grounding in semiotics (Lawyers Making Meaning: The Semiotics Of Law In Legal Education II (Springer, 2013) (with Jan M. Broekman)) and a political/cultural approach to law and politics (“The Führer Principle of International Law,” Penn State Int’l L. Rev. 21(3):509-567 (2003)) that suggests the even in the public sphere the state has been subsumed within larger systems (“Ideologies of Globalization and Sovereign Debt,” Penn State Int’l L. Rev. 24:497-561 (2006)). At its foundation is the premise that law and governance are as embedded in larger governance systems as states have become subsumed within those systems. Neither is limited to those products of statutes and court cases, or even of administrative regulation, that historically defined the borders of a lawyer’s craft in the way that territorial borders defined the limits of public political power. Law and governance becomes as much a political and cultural project as it is a formal legal one (“Chroniclers in the Field of Cultural Production.” B.C. Third World L.J. 20:291-343 (2000)).
The state centered basis of national organization has given way to international normative constraints that check even the will of a polity to order itself as it desires (“From Constitution to Constitutionalism,” Penn State L. Rev. 113(3):671-732 (2009)). The conventional singular system of public law grounded in a state system characterized by a strongly interlinked network of domestic legal orders managed through the evolution of meta-norms generated through the institutions of the community of nations is now being challenged by a governance order better characterized by fracture, fluidity, permeability and polycentricity. (“The Structural Characteristics of Global Law for the 21st Century,” Tilburg L. Rev.17(2):177-199 (2012)). To make human rights work, there must be a recognition of the consequences for law and governance that follow the de-centering of states and the state system. These consequences are the foundation for the development of human rights that challenge the traditional constraining approaches of law (“Multinational Corporations, Transnational Law,” Columbia Hum. Rts. L. Rev. 37:287-389 (2006)). They suggest the limits of the worthy efforts to improve state responses to transnational challenges, especially those touching on human rights, now incapable of providing comprehensive solutions (“A Lex Mercatoria for Corporate Social Responsibility Codes without the State,” Ind. J. Glob. L. Stud. 23:115-146 (2017)). Still, they also suggest neither order nor consensus—indeed there is as much resistance as there is transformation in the changes that globalization brings (Harmonizing Law in an Era of Globalization: Convergence, Divergence, Resistance (L.C. Backer, ed., Carolina Academic Press, 2007)).
Those realities also suggest that non-state actors, principally transnational corporations (TNCs) and global NGOs now exert an increasing influence not merely on the production of law and policy with respect to human rights, but that they might also participate more effectively in the governance of behaviors that comprise human rights than do states. (“Economic Globalization and the Rise of Efficient Systems of Global Private Law Making,” U. Conn. L. Rev. 39(4):1739-1784 (2007)) The idea of human rights due diligence overseen by corporations and monitored by NGOs was virtually unheard of a decade ago, yet today those techniques driven by those private entities may be more important as a site for the production of human rights norms than the efforts of public organs. (“Transnational Corporations’ Outward Expression of Inward Self-Constitution,” Ind. J. Glob. L. Stud. 20(2):805-879 (2013)). Yet it also means that states can assert substantial authority within global private markets, to the extent of their market power, using the traditional mechanics of public power. This is especially evident with the rise of sovereign wealth funds that may be used as a means of leveraging regulatory power in the case of Norway (“Sovereign Investing and Markets-Based Transnational Rule of Law Building,” Am. U. Int’l L. Rev. 29(1):1-121 (2013); “Sovereign Wealth Funds as Regulatory Chameleons,” Georgetown J. Int’l L. 41(2):425-500 (2010)); or Chinese economic policy (“Sovereign Investing in Times of Crisis,” Transnat’l L. & Contemp. Probs. 19(1):3-144 (2010)). These funds point developing regulatory structures for financial markets (“Regulating Global Markets: What we Might Learn From Sovereign Wealth Funds,” in Reshaping Markets: Economic Governance, The Global Financial Crisis, and Liberal Utopia (B. Lomfield, A. Somma and P. Zumbansen, eds., Cambridge Univ. Press, 2016)). Since the secind decade of the 21st century they appear as well to be evolving from mere investment vehicles to instruments in aid of development and national economic capacity “Sovereign Wealth Funds, Capacity Building, Development, and Governance,” 52(4) Wake Forest Law Review 735-780 (2017).
These changes affect Marxist Leninist States as much as they do Western states, though in different ways. (“Party, People, Government, and State: On Constitutional Values and the Legitimacy of the Chinese State-Party Rule of Law System,” B.U. Int’l L. J. 30(1):331-408 (2012)). Understood on their own terms, these systems can present constitutional questions that are functionally similar to those of Western states. These include questions of constitutional interpretation (“A Constitutional Court for China Within the Chinese Communist Party?,” Suffolk L. Rev. 43(3):593-624 (2010)) and separation of powers (“Towards a Robust Theory of the Chinese Constitutional State,” Modern China 40(2):168-195 (2014)). Importantly the conceptual differences in separation of powers may also lead to quite distinct approaches to the role and function of judges (“Between the Judge and the Law—Judicial Independence and Authority with Chinese Characteristics,” 33(1) Connecticut Journal of International Law 1-41 (2017)). And even Marxist-Leninist states must confront the reality of governance structures that center markets as the most potent regulatory instrument for contemporary states (“Central Planning Versus Markets Marxism: Their Differences and Consequences for the International Ordering of State, Law, Politics, and Economy,” Connecticut Journal of International Law 32(1):1-47 (2016)).
Human rights focuses not merely on western-style corporate enterprises, but also on Marxist Leninist enterprises within globalization (“Globalization and the Socialist Multinational,” in Handbook on Contemporary Cuba: Economy, Civil Society, and Globalization 287-299 (M. Font & C. Riobó, eds., Paradigm Press, 2013)) or in domestic and regional development (“From Colonies to Collective: ALBA, Latin American Integration, and the Construction of Regional Political Power,” Routledge Handbook on Diplomacy and Statecraft chp. 28 (B.J.C. McKercher, ed., Routledge, 2012)) where the corporation and the state fuse (“Cuban Corporate Governance at the Crossroads: Cuban Marxism, Private Economic Collectives, and Free Market Globalism,” Transnat’l L. & Contemp. Problems 14(2):337-418 (2004)). Indeed, the internationalization of constitutionalism within domestic legal orders, in their ideological dimension, fundamentally structures approaches to human rights (“Theocratic Constitutionalism,” Ind. J. Glob. L. Stud. 16(1):85-172 (2009)) in way that may be incompatible with international human rights norms. These developments within the conventional international system are advancing even as globalization restructures the basic relationships among law, states and governance, and thus re-orients their respective relationship with human rights. (“Inter-Systemic Harmonization and Its Challenges for the Legal-State,” in The Law of the Future and the Future of the Law 427-437 (S. Muller, et al., eds., Torkel Opsahl, Academic EPublisher, Oslo, 2011)).
Human rights are now better understood as a function of combinations of “law” and other governance systems (“From Institutional Misalignments to Socially Sustainable Governance: The Guiding Principles for the Implementation of the United Nation’s “Protect, Respect and Remedy” and the Construction of Inter-Systemic Global Governance,” Pacific McGeorge Glob. Bus. & Dev. L. J. 25(1):69-171 (2012)). But it remains as well the object of politics and the construction of society (“If you Want to Change Societal Norms You have to Change Society,” in The Accidental Historian: The Michael Olivas Reader (E. Roman, ed., Carolina Academic Press, forthcoming 2017)). Equally important, the shape of human rights is as much a function of governance (norm) as it is of technique, from cultures of surveillance, but now as dependent on the norms and techniques of assessment and surveillance (“Global Panopticism: Surveillance Lawmaking by Corporations, States, and Other Entities,” Ind. J. Glob. L. Stud. 15(1):101-148 (2008)), of monitoring as a market device (“From Moral Obligation to International Law: Disclosure Systems, Markets and the Regulation of Multinational Corporations,” Georgetown J. Int’l L. 39:591-653 (2008)), and on the human rights based focus of transparency (“Transparency Between Norm, Technique and Property in International Law and Governance,” Minn. J. Int’l L. 22:1-70 (2013)). And, indeed, the market system itself can serve as the most complex and useful technique of governance (“Theorizing Regulatory Governance Within its Ecology,” Contemp. Pol. 23:— (Sp. Issue forthcoming 2017)). These responsibilities increasingly apply both to operating companies and to the enterprises that finance them as well (“The Corporate Social Responsibilities of Financial Institutions for the Conduct of their Borrowers: The View from International Law and Standards,” 21 Lewis & Clark Law Review 881-920 (2017)).
These governance challenges then fold back into issues of fundamental legitimacy, which like the state, are founded on principles of democracy (“Democratizing the Global Business and Human Rights Project by Catalyzing Strategic Litigation from the Bottom Up,” in Human Rights and Business: Moving Forward, Looking Back 254-287 (Jena Martin and Karen Erica Bravo, eds., Cambridge University Press, 2015)) (With K. Wang, N. Haddad and T. Teraoka)). They also raise issues of legitimacy in governance systems beyond the state, and especially of representation. States subject to international public and private regulatory systems, international organizations producing norms to be embedded in domestic legal orders, civil society purporting to serve their constituencies—all of these suggest the challenges of the basic building block of democratic legitimacy, the ideal of an authenticating representation (“Fractured Territories and Abstracted Terrains: The Problem of Representation and Human Rights Governance Regimes Within and Beyond the State,” Ind. J. Glob. L. Stud. 13(1):61-94 (2016)). These issues of legitimacy are compounded when distinct legal systems merge or occupy the same space in ways that challenge the ancient structuring principles of Western liberal markets-based democracy (“The Crisis of Secular Liberalism and the Constitutional State in Comparative Perspective,” Cornell Int’l L.J. 48:51-104 (2015).)
Most important, the cultural foundations of domestic governance can shape the approach to human rights, especially in the domestication of social, cultural and economic rights, in significant ways (“Realizing Socio-Economic Rights Under Emerging Global Regulatory Frameworks,” The G. Wash. Int’l L. Rev 45(4):615-680 (2013)). In Marxist Leninist systems, for example, the expression of the basic principle of human dignity at the heart of the human rights normative edifice is expressed not as inherent in the individual but as embedded in the structures of duty of the state itself (“China’s Corporate Social Responsibility with National Characteristics,” in Human Rights and Business: Moving Forward, Looking Back 530-558 (J.Martin and K. E. Bravo, eds., Cambridge Univ. Press, 2015)). On the other hand, the engagement of even Marxist systems with market based techniques can have profound effects on the context in which the notions of human dignity are framed and the relationship between human rights, state ideology, and the state itself are written into law and political practice (“Central Planning Versus Markets Marxism: Their Differences and Consequences for the International Ordering of State, Law, Politics, and Economy,” Conn. J. Int’l L. 32(1):—(forthcoming 2017)). Yet, human rights regimes, to the extent they transcend the state also provide strong evidence of the emergence of both polycentric governance (“Private Actors and Public Governance Beyond the State: The Multinational Corporation, the Financial Stability Board and the Global Governance Order,” 18(2) Ind. J. Glob. L. Stud. 18(2): 751-802 (2011)) and of government beyond the state (“Governance Without Government: An Overview,” in Beyond Territoriality: Transnational Legal Authority in an Age of Globalization 87-123 (G. Handl, J. Zekoll, P. Zumbansen, eds., Brill Academic Pub., 2012)).
States now leverage polycentricity not merely internally or as a means of participating in the construction of global governance systems, but as a means of projecting and preserving power. (“The Trans-Pacific Partnership: Japan, China, the U.S. and the Emerging Shape of a New World Trade Regulatory Order,” Wash. U. Glob. Stud. L. Rev. 13(1): 49-81 (2014)). It is in this context that it is useful to speak as well of regime collisions—a recognition of the fact that legal fragmentation into an increasing number of governance regimes with overlapping areas of competence can lead to contradictory decisions or mutual obstructions. The development of governance regimes for the human rights impacts of economic activity suggests the ways in which multi-systemic governance, one with order but without an ordering center, can be managed (“Governance Polycentrism or Regulated Self-Regulation,” in Contested Regime Collisions: Norm Fragmentation in World Society 198-225 (K. Blome, et al. eds., Cambridge Univ. Press, 2016). And that brings us back to the way that sovereign wealth funds serve as instruments, not merely of financial markets but of human rights and development as well (“SWFs in Five Continents and Three Narratives: Similarities and Differences,” in Research Handbook on Sovereign Wealth Funds and International Investment Law 57-98 (F. Bassan, ed., Edward Elgar, 2015)).
But the human rights project is also bound up strongly in emerging transnational legal systems, through which human rights structures have been most successfully advanced (“The Emerging Normative Structures of Transnational Law,” Brigham Young U. J. Public Law 31(1):1-52 (2016)). These may challenge settled notions of a hierarchy of remediation centered on the courts, as public actors build hybrid organizations that may mediate human rights related disputes outside of national judicial systems (“Case Note: Rights and Accountability in Development (Raid) V Das Air (21 July 2008) And Global Witness v Afrimex (28 August 2008,” Melb. J. Int’l L. 10(1):258-307 (2009)). These may also challenge strongly held views on the nature of public and private enterprises—and especially the complex of principles that constitute the normative structures of corporate legal personality and economic autonomy (“The Autonomous Global Corporation,” Tulsa L. J. 41(4):541-571 (2006)). These challenges must then confront efforts to nudge traditional principals toward new approaches (“The Concept of Constitutionalization and the Multi-Corporate Enterprise in the 21st Century,” in Multinationals and the Constitutionalization of the World Power System 170-189 (J.-P. Robé, A. Lyon-Caen, and S. Vernac, eds., Routledge (Taylor & Francis Group), 2016)), and the resulting likelihood of significant resistance (“Considering a Treaty on Corporations and Human Rights,” (forthcoming 2017 ). Alternatively, they produce efforts at transformation in which the old structures of the state system and its principles are replaced with another. That impulse is currently quite strong in the context of the legalization and regulation of the human rights conduct of business and of states (“The Perils and Promise of Drafting a Comprehensive Treaty on Business and Human Rights,” N. C. J. Int’l L. 42(1):– (forthcoming 2017)). Alternatively, they might nudge soft law systems toward societal legalization that mimics the rise of the common law (“From Guiding Principles to Interpretive Organizations,” in Business and Human Rights: Beyond The End of the Beginning (C. Rodríguez-Garavito, ed., Cambridge Univ. Press, forthcoming 2016)). Private and public organizations are working toward the embedding the normative principles of human rights within corporate practice, and the language of corporate operation, even as the state continues to appear to evade a robust application through domestic law (“Moving Forward the U.N. Guiding Principles for Business and Human Rights,” Fordham Int’l L. J. 38(2):457-542 (2015)).
This brings us back to the central object of the project—the ordering of states and TNCs within transnational regimes and grounded in their mandatory relationships to individuals. One moves from the commonplace focus on the TNC as the institution bridging state and international space (“Regulating Multinational Corporations,” Brown J. World Affs. 22(1):153-173 (2015)) to the TNC as itself an aggregation—a system—that frames a regulatory space into which regulatory power is projected (“Are Supply Chains Transnational Legal Orders,” U.C. Irvine J. Int’l, Transnat’l, & Comp. L 1(1):– (forthcoming 2016)). Yet the TNC also projects regulatory power within the state system itself—for example, and increasingly, in those states that exist nominally but whose governance institutions are weak or nonexistent (“Corporate Social Responsibility in Weak Governance Zones,” Sta. Clara J. Int’l L. 14(1):297-332 (2016)). And the state itself can serve as the most important TNC operating within and beyond the state (“The Cooperative as Proletarian Corporation,” Nw J. Int’l L. & Bus. 33:527-618 (2013). Lastly it reminds us of the connections of these governance regimes and the financial mechanism that tie production to finance of globalized forces (“International Financial Institutions (IFIs) and Sovereign Wealth Funds,” Int’l Rev. L. 2015). What should emerge from this project, then, is a better understanding of the developing systems and their value in implementing the normative foundations of globalization. These reflect a new basis for managing the productive forces of labor (through human rights) and capital (through CSR) within, between and beyond the state.
Yet the enterprise itself has become less well defined or perhaps better understood as something more than an augmented form of corporation. On the one hand, the privatization of the state has produced a curious development of state owned enterprises. These are incarnations of states, quite clearly. At the same time they are meant to be distinguished, along functional lines, between the political and the economic operations of states. Each is supposed to be managed within distinct approaches to law and governance. And yet it is not clear that those distinctions have survived the operationalization of globalization without undergoing substantial changes (“The Human Rights Obligations of State-Owned Enterprises: Emerging Conceptual Structures and Principles in National and International Law and Policy,” 50(4) Vanderbilt Journal of Transnational Law 827-888 (2017)).
Law and governance is no longer limited to those products of statutes and courts cases that used to define the borders of a lawyer’s craft the way that territorial borders defined the limits of public political power. All aspects of challenges that transcend national boundaries, whether these challenges are global, regional or bi-lateral were exceptional and marginal to the lawyer of the last century. But the reality of globalization now poses challenges to this world view. (Ideologies of Globalization and Sovereign Debt: Cuba and the IMF, 24 Penn State International Law Review 497-561 (2006)). Challenges touch on all aspects of human interaction; they can range from migration, to communicable diseases, to trade barriers, to corruption, to access to education, food and economic opportunity. (“Medieval Poor Law in Twentieth Century America: Looking Back Towards a General Theory of Modern American Poor Relief, Case Western Reserve Law Review 44:871-1041 (1995); “Exposing the Perversions of Toleration: The Decriminalization of Private Sexual Conduct, the Model Penal Code, and the Oxymoron of Liberal Toleration,” University of Florida Law Review 45:755-802 (1993)). More fundamentally, these issues of law and governance touch on core cultural baselines for ordering society (“Chroniclers in the Field of Cultural Production: Interpretive Conversations Between Courts and Culture,” 20 Boston College Third World Law Journal 291-343 (2000); “The Many Faces of Hegemony: Patriarchy and Welfare as a Women’s Issue,” 92 Northwestern University Law Review 327 (1997) (reviewing Mimi Abramovitz, Under Attack, Fighting Back: Women and Welfare Reform in the United States (1996)).).
Critical to meeting that challenge is an approach that embraces the idea that training, and the scholarship of faculty charged with that training, ought to be sufficient to enable them to function effectively from the conceptualization and formulation of policy, to its implementation and monitoring (“Harmonization, Subsidiarity and Cultural Differences: An Essay on the Dynamics of Opposition Within Federative and International Legal Systems,” Tulsa Journal of Comparative & International Law 4;185-217 (1997).). That philosophy and approach, and the embrace of the necessity of innovation in a world that is not bounded by the rules of fixed academic discourse, is the benchmark of my transnational law scholarship, one that is focused on human rights and constitutionalism. That we live in a rapidly changing world is more than a cliché, an empty phrase used to mask a fidelity to unchanging approaches to scholarship even as the world changes around us. The conventional singular system of public law grounded in a state system characterized by a strongly interlinked network of domestic legal orders managed through the evolution of meta-norms generated through the institutions of the community of nations is now being challenged by a governance order better characterized by fracture, fluidity, permeability and polycentricity. (“The Structural Characteristics of Global Law for the 21st Century: Fracture, Fluidity, Permeability, and Polycentricity,” 17(2) Tilburg Law Review 177-199 (2012)).
The realities of modern life mean that to make human rights work, we have to recognize that there are consequences for law and governance that follow the de-centering of states and the state system, and that this consequence is of the essence for the development of human rights. (“Multinational Corporations, Transnational Law: The United Nation’s Norms on the Responsibilities of Transnational Corporations as a Harbinger of Corporate Social Responsibility as International Law,” 37 Columbia Human Rights Law Review 287 (2006)). Those realities suggest that the tight connection between law, governance and the state may be loosening again (“Reifying Law: Understanding Law Beyond the State,” Penn State International Law Review 26(3):521-563 (2008)). They also suggest that non-state actors, principally corporations and global NGOs now exert an increasing influence not merely on the production of law and policy with respect to human rights, but that they might also participate more effectively in the governance of behaviors that comprise human rights than do states. (“Economic Globalization and the Rise of Efficient Systems of Global Private Law Making: Wal-Mart as Global Legislator,” 39(4) University of Connecticut Law Review 1739 (2007)) The idea of human rights due diligence overseen by corporations and monitored by NGOs was virtually unheard of five years ago, yet today the impact of the Fair Labor Association and Apple Inc. in developing implementing and policing rules for factory workers within Apple’s global supply chain may be more important as a site for the production of human rights norms than the efforts of public organs. (“Transnational Corporations’ Outward Expression of Inward Self-Constitution: The Enforcement of Human Rights by Apple, Inc.,” 20 Indiana Journal of Global Legal Studies805-879 (2013).) Yet it also means that states can assert substantial authority within global private markets as they might using the traditional mechanics of public power. This is especially evident with the rise of sovereign wealth funds that may be used as a means of leveraging regulatory power in the case of Norway (“Sovereign Investing and Markets-Based Transnational Rule of Law Building: The Norwegian Sovereign Wealth Fund in Global Markets,” 29(1) American University International Law Review 1-121 (2013); “Sovereign Wealth Funds as Regulatory Chameleons: The Norwegian Sovereign Wealth Funds and Public Global Governance Through Private Global Investment,” 41(2) Georgetown Journal of International Law 425-500 (2010) ); or economic policy in the case of China (“Sovereign Investing in Times of Crisis: Global Regulation of Sovereign Wealth Funds, State Owned Enterprises and the Chinese Experience,” 19(1) Transnational Law & Contemporary Problems 3-144 (2010) ).
We have come to understand that these changes affect Marxist Leninist States as much as they do Western states, though in different ways. (Party, People, Government, and State: On Constitutional Values and the Legitimacy of the Chinese State-Party Rule of Law System, 30(1) Boston University International Law Journal 331-408 (2012)). Understood on their own terms, these systems can present constitutional questions that are functionally similar to those of Western states. These include questions of constitutional interpretation (“A Constitutional Court for China Within the Chinese Communist Party?: Scientific Development and a Reconsideration of the Institutional Role of the CCP,” 43(3) Suffolk Law Review 593-624 (2010)) and separation of powers (“Towards a Robust Theory of the Chinese Constitutional State: Between Formalism and Legitimacy in Jiang Shigong’s Constitutionalism,” 40(2) Modern China 168-195 (2014)). Indeed, the internationalization of constitutionalism within domestic legal orders, in their ideological dimension, fundamentally structures approaches to human rights (“Theocratic Constitutionalism: An Introduction to a New Legal Global Ordering,” 16(1) Indiana Journal of Global Legal Studies 85-172 (2009)) in way that may be incompatible with each other. These developments within the conventional international system are advancing even as globalization restructures the basic relationships among law, states and governance, and thus re-orients their respective relationship with human rights. (Inter-Systemic Harmonization and Its Challenges for the Legal-State, in FICHL Publication Series No. 11 (2011): The Law of the Future and the Future of the Law 427-437 (Editors: Sam Muller, Stavros Zouridis, Morly Frishman and Laura Kistemaker; Torkel Opsahl Academic EPublisher, Oslo, 2011)). And indeed, human rights are now better understood as a function of combinations of “law” and other governance systems. (From Institutional Misalignments to Socially Sustainable Governance: The Guiding Principles for the Implementation of the United Nation’s “Protect, Respect and Remedy” and the Construction of Inter-Systemic Global Governance, 25(1) Pacific McGeorge Global Business & Development Law Journal 69-171 (2012)).
Equally important, the shape of human rights is as much a function of governance (norm) as it is of technique, from cultures of surveillance, but now as dependent on the norms and techniques of assessment and surveillance (Global Panopticism: Surveillance Lawmaking by Corporations, States, and Other Entities, 15(1) Indiana Journal of Global Legal Studies 101 (2008)), of monitoring as a market device (From Moral Obligation to International Law: Disclosure Systems, Markets and the Regulation of Multinational Corporations, 39 Georgetown Journal of International Law 591 (2008)), and on the human rights based focus of transparency (Transparency and Business in International Law, in Transparency in International Law (Anne Peters and Andrea Bianchi, eds., Cambridge: Cambridge University Press, forthcoming 2012); Transparency Between Norm, Technique and Property in International Law and Governance—The Example of Corporate Disclosure Regimes and Environmental Impacts, 22 Minnesota Journal Of International Law 1-70 (2013)). Human rights focuses not merely on western-style corporate enterprises, but also on Marxist Leninist enterprises within globalization (Globalization and the Socialist Multinational: Cuba at the Intersection of Business and Human Rights, in Handbook on Contemporary Cuba: Economy, Civil Society, and Globalization (New York: CUNY/Paradigm Press, forthcoming 2012)) or in domestic and regional development (The Cooperative as Proletarian Corporation: Property Rights Between Corporation, Cooperatives And Globalization In Cuba” in 33 Northwestern Journal of International Law and Business —(forthcoming 2012-2013); From Colonies to Collective: ALBA, Latin American Integration, and the Construction of Regional Political Power, Routledge Handbook on Diplomacy and Statecraft (B.J.C. McKercher, ed., London: Taylor & Francis/Routledge, 2012)). Most important, the cultural foundations of domestic governance can shape the approach to human rights, especially in the domestication of social, cultural and economic rights, in significant ways (“Realizing Socio-Economic Rights Under Emerging Global Regulatory Frameworks: The Potential Impact of Privatization and the Role of Companies in China and India,” 45(4) The George Washington International Law Review 615-680 (2013) ). Human rights regimes, to the extent they transcend the state also provide strong evidence of the emergence of both polycentric governance (Private Actors and Public Governance Beyond the State: The Multinational Corporation, the Financial Stability Board and the Global Governance Order, 18(2) Indiana Journal of Global Legal Studies 751 (2011)) and of government beyond the state (Governance Without Government: An Overview, in Beyond Territoriality: Transnational Legal Authority in an Age of Globalization 87-123 (Günther Handl, Joachim Zekoll, Peer Zumbansen, editors, Leiden, Netherlands & Boston, MA: Brill Academic Publishers, 2012)). States now leverage polycentiricy not merely internally, but as a means of participating int he construction of global governance systems but as a means of projecting and preserving power. (“The Trans-Pacific Partnership: Japan, China, the U.S. and the Emerging Shape of a New World Trade Regulatory Order,” 13(1) Washington University Global Studies Law Review 49-81 (2014)).