From Institutional Misalignment 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
Larry Catá Backer
Penn State Law
September 5, 2011
Pacific McGeorge Global Business & Development Law Journal, 2011
Once upon a time, and for a very short time, there was something that people in authority, and those who manage collective memory, considered a stable system of political and economic organization. It was grounded on a complex division of authority between states, economic entities and social collectives. Contemporary economic globalization has destabilized this traditional system. Corporations are no longer completely controlled by the states that chartered them or within complex enterprises, even by those in which they operate. Social collectives now operate to change the political cultures that affect the public policy of states and the economic behavior of companies. These changes have produced a dynamic state in governance, one which has been characterized as furthering misalignment among governance regimes. These misalignments have the potential to detrimentally affect the welfare of individuals and groups. Over the last decade a number of efforts have been made to offer a new context for stability in the relationships between the political, economic and social orders at the national and international levels. Among the most valuable proposals, one most likely to contribute significantly to the new governance order, has been efforts to elaborate a transnational regulatory framework for transnational corporations and other business enterprises - the United Nations’ 'protect, respect, and remedy' framework. This framework system has been developed to reframe the way in which the political, economic and social governance orders work together. Now reduced to a set of Guiding Principles, this framework seeks inter-systemic harmonization that is socially sustainable, and thus stable. The framework both recognizes and operationalizes emerging governance regimes by combining the traditional focus on the law systems of and between states with the social-systems of non-state actors and the governance effects of policy. This paper critically analyzes the Guiding Principles and its three key parts - the state duty to protect, the corporate responsibility to respect and the access to remedies. Part One provides a short introduction to the problems and issues that led to the movement toward the development of a framework for governance regimes for business and human rights. Part Two then focuses on the development of the Guiding Principles from conception to articulation. Part Three examines the Guiding Principles in detail. The examination starts from the report introducing the Guiding Principles, and then turns to a section-by-section analysis of the Guiding Principles themselves. These serve as a basis for an overall assessment of the Protect, Respect and Remedy framework as a viable, coherent and comprehensive effort to frame a governance regime for business and human rights. The Protect, Respect and Remedy Framework operationalized through the Guiding Principles presents an innovative approach to governance. But its most forward looking and valuable characteristics are also ones that make the project vulnerable - for states there is too great a recognition of the autonomy and power of social-norm systems. The GP framework represents a microcosm of the tectonic shifts in law and governance systems and the organization of human collectives confront the consequences of globalization.
Number of Pages in PDF File: 116
Keywords: soft law, John Ruggie, business and human rights, protect-respect-remedy framework, international law, multinational corporations
JEL Classification: F23, K22, K33, P45Accepted Paper Series
Date posted: September 6, 2011
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