Democratizing International Business and Human Rights by Catalyzing Strategic Litigation: The Guidelines for Multinational Enterprises and the U.N. Guiding Principles of Business and Human Rights From the Bottom Up

1. Larry Catá Backer, Penn State University
Nabih Haddad, Michigan State University
Tomonori Teraoka, University of Tokyo
Keren Wang, Penn State University
Teaching Business and Human Rights Workshop
May 18-19, 2015
Columbia Law School Human Rights Institute, New
York, NY
DEMOCRATIZING INTERNATIONAL BUSINESS AND HUMAN
RIGHTS BY CATALYZING STRATEGIC LITIGATION
The Guidelines for Multinational Enterprises and the U.N. Guiding Principles of Business
and Human Rights From the Bottom Up

2. The Problem I
• At base, both national and international programs for the advancement of human rights has proceeded
from the fundamental premise
– that all regulation must be based on law,
– that states are the sole source of law, and
– that the law-state complex stands at the apex of the hierarchy of the legitimate assertion of
coercive (and legitimate) power against individuals and other non-state actors.
– Though the human rights project as part of the development of public international law has become
bifurcated, it remains an important element for framing the substantive components of human
rights, especially by state actors
– re-affirmation of the dominance of state-based judicial remedies
• De-centers corporate responsibility to respect and the social norm system of governance
– Remedial mechanisms favor state based remedies
• But broad definition of state based remedies
• Supplementary role for private remediation
– small or middle-size companies are left out from the framework
– Reliance upon vertically pre-structured mechanisms
• Hard vs soft law
• State vs corporation
• Host versus home state

3. The Problem II
• Consequence:
– The human rights project as an elitist enterprise
• Centered on upstream multinationals, Western states (home states of upstream
actors)
• Mirrors global governance structures (e.g., G-20; Financial Stability Board Model).
– The objects of human treated as recipients not actors
• Enterprises, NGOs and individuals down the supply chain are
effectively cut out of meaningful engagement
• Human rights delivery reproduces hierarchies of
subordination and assimilative colonialism??

4. The Thesis
• Effective implementation of the Guiding Principles
requires empowerment of stakeholders down the
supply chain
• Requires two distinct but related activity
– Knowledge Production; Knowledge Dissemination
– Engagement/Development of state based to
international mechanics
• For the vindication of human rights wrongs
• To participate in the development of human rights norms

5. Objective
– Develop a strategy for advancing programs of human
rights related to business activity through non-judicial
litigation
• Focus on soft law instruments in the public law sphere
• Focus on multinational supplier codes in the private governance sphere
– Mainstream and democratize the project of business and
human rights
• Mainstream
– Develop approaches to greater engagement in policy formation through effective
intervention within the government apparatus of states
– Repeat players
• Democratize
– Focus on empowering the objects of human rights policy efforts
» to better control the shape of those rights and
» The form and effect of remediation efforts

6. Roadmap
• Elaborates our initial framework for a three-phase approach for the Democratizing Human
Rights/Catalyzing Strategic Litigation (DHR/CSL) initiative

7. PART II: THE
PRODUCTION AND
MANAGEMENT OF
KNOWLEDGE
--- the mechanism of knowledge
production: “knowledge spiral
cluster” ---

8. The SECI “Spiral” Model of Knowledge Management (3)
• “SECI” model (Socialization, Externalization, Combination,
Internationalization)
(Source: Nonaka and Nishiguchi. 2001)

9. Knowledge Spiral Cluster (1)
• Bamboo Analogy
– Rhizomatic mechanism of knowledge production
• Poly-Centric Organ
– No distinction between internality and externality
– Complete open system in order to expand its connection to every direction of
360 degrees
– Actors are in the place of both subjects and objects
• Decentralized and De-possession of Knowledge
– No one holds control over the intention of knowledge but it is to be felt
• Democratization of Knowledge
– Mobilization of the Masses and Empowerment
• Autonomous Organic Circulation

10. PART III:
TRANSMITTING
KNOWLEDGE
Teaching; Learning

11. Effective Dissemination
• Generating knowledge and diffusing it in the most
effective way.
– Internal knowledge spiraling
• Common language/vocabulary
• Foundational premises—the culture of human rights
• Knowledge textures (gaps and solid spaces)
– Outward knowledge spiraling
• Team building
• Externalization
• Knowledge production
• Artifacts
– Policy Briefs, Online Fact Book, online communicative hub, and
online(accessible) syllabuses.

12. PART IV:
APPLYING KNOWDGE;
CATALYZING
LITIGATION
From learning to engagement
and remediation

13. Active Transmission
Theory of Action
Organizational
Change
Grass Roots
Implementation
Teaching Global
Human Rights
Standards

14. Utilizing Knowledge
• key objective of knowledge production and dissemination, to
stakeholders down the supply and value chain, is its
application in two key respects.
– Remediation of human rights detriments
– Advance the normative project of business and human rights
• Project of knowledge application is necessary
– Protect their own interests
• From businesses producing adverse human rights effects
• From states, civil society and businesses who seek to control the discourse of
business and human rights

15. The OECD National Contact Point
• Why a good choice?
– International law based
– Flexible standing rules; easier to enlist civil society
– Lower transaction costs to claim making
– Can be integrated with multi-jurisdictional domestic litigation strategies
• Can it contribute to the normative project?
– OECD system predicated on building functional law making
– Efficient manner of bringing in international norms to domestic
setting
– incorporates the U.N. Guiding Principles
– Potential to harmonize remedial and normative effects across
jurisdictions

16. The OECD National Contact Point II
• Tactical Goals
– Place the NCP at the heart of a global initiative through which to build a
common law of the Guiding Principles
– Use NCP to build decisions that that then be developed into a global
jurisprudence and eventually transposed to domestic law
– Attempt coherence between international norms and state duty to
protect human rights
• Social Norm Goals
– De-center business and human rights discourse
– Develop a client based remedial architecture in terms of the form of
remedies and the valuation of claims
– Provide a basis for more vigorous negotiations between upstream
and downstream stakeholders over substance of codes of conduct

17. Thank You!
• Democratizing International Business and Human Rights by Catalyzing
Strategic Litigation: The Guidelines for Multinational Enterprises and the
U.N. Guiding Principles of Business and Human Rights From the Bottom
Up
• Available
• PowerPoints Available