Global Governance and “New Governance Theory”: Lessons from Business and Human Rights

Abstract

ON 16 JUNE 2011, THE UN HUMAN RIGHTS COUNCIL UNANIMOUSLY ENDORSED the Guiding Principles on Business and Human Rights that I developed over the course of the previous six years in my role as the Secretary-General's special representative for business and human rights. (1) The journey involved nearly fifty international consultations on five continents, numerous site visits to individual firms and local communities, extensive research, and pilot projects to road test key proposals. For the council and its institutional predecessor, the Commission on Human Rights, the endorsement was unprecedented. It was the first time that the UN adopted a set of standards on the subject of business and human rights; and it remains the only time the commission or council endorsed a normative text on any subject that governments did not negotiate themselves. Moreover, the uptake of the Guiding Principles (GPs) by other standard-setting bodies, national and international, has been swift and widespread, as has their use as a policy template by companies and business associations as well as an advocacy tool by nongovernmental organizations (NGOs) and workers' organizations. (2) I have told the story of how this came about in my book, Just Business: Multinational Corporations and Human Rights. (3) Here, I want to relate it to recent conceptual debates in the study of global governance, which I loosely term new governance theory. (4) Governance, at whatever level of social organization it occurs, refers to the systems of authoritative norms, rules, institutions, and practices by means of which any collectivity, from the local to the global, manages its common affairs. Global governance is generally defined as an instance of governance in the absence of government. There is no government at the global level. But there is governance, of variable effectiveness. However, the recent literature has identified a secular trend: an already weak system of global governance apparently becoming more so. Global governance architectures, legal and institutional, are said to be fragmenting. (5) Traditional forms of international legalization and negotiation through universal consensus-based institutions are stagnating. (6) Regime complexes that often embody divergent norms dominate previously coherent rule systems. (7) The decline of the West and the rise of the rest add to the centrifugal pull, not only in material terms but also in animating visions. (8) There may be individual instances of network governance, multilevel governance, private governance, multistakeholder initiatives, and even experimentalist governance. (9) But the ideal solution of comprehensive and integrated regimes, Robert 0. Keohane and David G. Victor contend in the context of climate change, is increasingly unattainable and they urge making the best of this situation. (10) Few would argue that the picture is much different in other policy domains characterized by substantial problem diversity, conflicting interests, and uncertainty regarding risks, gains, and losses--which, of course, describes many of the most serious problems on the global governance agenda. And yet as has been said about Wagner's music, the situation may not be as bad as it sounds. I undertook the strategic construction of the Guiding Principles aware of the (powerful) systemic constraints and (modest) opportunities identified in this literature, to which I have contributed on occasion. (11) Indeed, in my UN reports, I described business and human rights as a microcosm of a larger crisis in contemporary governance: the widening gaps between the scope and impact of economic forces and actors, and the capacity of societies to manage their adverse consequences. The GPs are far from constituting a comprehensive and integrated global regime. But they do demonstrate that it is possible to achieve a significant degree of convergence of norms, policies, and practices even in a highly controversial issue area. …