Polycentrism, Experimentalist Governance, and the Future of Business and Human Rights Regulation

The terminology of polycentrism has been used to justify the ‘soft law’ UN Guiding Principles on Business and Human Rights over a potential ‘hard law’ business and human rights treaty. In parallel, an emerging literature seeks to answer critics of human rights treaties, on grounds of their failure to drive compliance, with reference to the experimentalist global governance thesis under which human rights treaties are effective when viewed as “dynamic, participatory, two-way systems”. This paper will analyse and contrast the polycentric and experimentalist governance theses, their insights and limitations. It will explore the bearing of each on current discussions concerning the choice between the UNGPs and a business and human rights treaty, and how they might be combined in an “experimentalist” business and human rights framework convention, while in closing endeavouring to situate these in broader current discussions on possible relationships between neoliberalism and human rights.

Governance for Human Rights and Sustainable Development

The paper explores global governance and accountability modes required for realizing human rights and reaching the SDGs. One often believes that if the human rights agenda presupposes, to a greater extent, traditional hierarchical, top-down, and state-centered governance, then the sustainable development agenda looks for rather alternative non-hierarchical, bottom-up, and polycentric institutional solutions. The paper will critically analyze this position and demonstrate that diverse traditional and innovative approaches to governance and accountability should be integrated and balanced in order to create new and modify the existing multilevel and multi-actor institutional architectures indispensable for the realization of human rights and the achievement of the SDGs.

Democratizing Global Governance to Advance Health Rights and Global Justice

In the face of obvious limitations of being bounded by the nation-state in terms of ethical responsibilities and legal accountability of states and non-state actors that operate across the globe, it is imperative to extend the social contract to the trans-boundary activities of states, and private entities under their effective control. Some proposals for global health governance suggest variations on strengthening global government through existing global institutions. I argue broader network-based, experimentalist governance structures likely will be more democratic and nimble in addressing global inequity. Giving examples of proposals, I assert such an experimentalist and networked model of governance and advocacy calls for different funding, different organizational structures, different institutional mandates and different power relationships between North and South.

The UN Global Compact on Migration; a blueprint for multilateral global governance?

The recent refugee ‘crisis’ that reached its peak during 2015-16 paved the way for the adoption of the UN New York Declaration for Refugees and Migrants. This first step was followed by a two year period of negotiations and consultations in two fronts; one on responding to the refugee crisis and the other one on formulating a common managerial scheme for safe orderly and regular migration. Within this context, the current contribution questions the significance of the Global Compact on Migration as a non-legally binding document and explores its potentials as a political platform of commitment; In particular the paper examines the normative effect of this multidimensional exercise and tries to shed light on its impact for the future of multilateral global governance.

Intrinsically Binding Norms as Trailblazers for Change

Intrinsically binding norms are non-legally binding norms which due to their specific normative design develop a high degree of effectiveness.
They can be true drivers for change, as shown by the example of the UN Guiding Principles on Business and Human Rights:
They were
– fundamental in shaping the concept of “corporate responsibility to respect human rights”
– induced change in the behavior of non-state actors, and
– found their way into national laws (e.g. French Duty of Vigilance Law).
And the major paradigm shift they represent might one day be incorporated into public international law.
However, the concept of intrinsically binding norms does NOT change the dichotomy between law and non-law. Extending the notion of law towards the inclusion of extra-legal normative activity would mean diluting the important role of law. Intrinsically binding norms and law interact in many ways, which can best be analyzed in a pluralist understanding of today’s global regulatory framework.