Governance polycentrism or regulated self-regulation

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 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.