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Electronic copy available at: http://ssrn.com/abstract=1906834
Protect, Respect, Remedy and Participate:
‘New Governance’ Lessons for the Ruggie Framework
Tara J. Melish and Errol Meidinger
I. INTRODUCTION
John Gerard Ruggie has contributed enormously to the field of international
law and public policy throughout his eminent career, both as public law scholar
and international public servant. Nowhere is this more evident than in his recent
work as Special Representative of the Secretary-General (SRSG) on the issue of
human rights and transnational corporations, a United Nations mandate he held
from 2005 to 2011.1 Under that mandate Professor Ruggie and his accomplished
team have succeeded in crafting a principles-based conceptual and policy
framework for addressing business-related human rights harm that has not only
raised the international prominence of human rights responsibilities for business
entities, but has done so in terms that have been widely endorsed by a broad range
of key stakeholders – especially states and business associations,2 but also many
civil society organisations.3 Following on the heels of the more coolly-received
Draft Norms,4 such broad endorsement constitutes a significant political and
Associate Professor & Director of the Buffalo Human Rights Center, University at
Buffalo School of Law, The State University of New York.
Professor & Director of the Baldy Center for Law and Social Policy, University at
Buffalo School of Law, The State University of New York.
1 UN Doc. E/CN.4/2005/L.87, para. 1 (15 April 2005) (establishing mandate).
2 In June 2008, the UN Human Rights Council unanimously endorsed the PRR policy
framework. See UN Doc. A/HRC/8/5. As Ruggie has underscored, that endorsement
marked the first time the Council or its predecessor had taken an express policy position on
business and human rights. The framework has likewise been endorsed by the world‘s
largest business associations, the International Council on Mining and Metals, the Business
Leaders Initiative on Human Rights, and scores of socially responsible investment funds.
See J. G. Ruggie, ‗Protect, Respect and Remedy: A United Nations Policy Framework for
Business and Human Rights‘, 103 American Society of International Law Proceedings
(2009) pp. 282, 287.
3 The value of the framework has been recognised by Amnesty International and large
numbers of other civil society organisations (CSOs) in individual and joint submissions to
the Human Rights Council. See UN Doc. A/HRC/8/NGO/5; Ruggie, supra note 2, p. 287.
Nevertheless, a large number of other CSOs, especially from the global south, have been
more critical, urging the Human Rights Council to reject the Draft Guiding Principles. See
e.g. Statement to the Delegations on the Human Rights Council 2011, 17th Session,
Agenda Item 3 (30 May 2011), <www.fian.org/news/press-releases/CSOs-respond-to-
ruggies-guiding-principles-regarding-human-rights-and-transnational-corporations/pdf>.
4 Norms on the Responsibilities of Transnational Corporations and Other Business
Enterprises with Regard to Human Rights, UN Doc. E/CN.4/Sub.2/2003/12/Rev.2 (26
August 2003). While the UN Human Rights Commission‘s decision to table the Draft
Electronic copy available at: http://ssrn.com/abstract=1906834
2 Respect, Protect, Remedy and Participate [5-8-2011
diplomatic achievement for the Special Representative, essential for moving
forward the international agenda on business and human rights.
Despite this important achievement, we nonetheless believe that there are
serious shortcomings in the SRSG‘s ‗Protect, Respect, Remedy‘ (PRR)
framework. In this chapter, we interrogate the theoretical underpinnings of the
PRR framework and query whether a conceptually and operationally more
effective framework might have been produced had Ruggie and his team
approached the task from a new governance or new accountability perspective.5
While it is unclear whether Professor Ruggie would consider himself a new
governance scholar, it is clear that much of his work closely parallels the
emergence of the new governance perspective. Thus, over the same period that he
was developing the precepts of social constructivism, embedded liberalism, and
the global public domain, ‗new governance‘ was taking form as a framework for
understanding modern policy making. As described below, it likewise seeks to
articulate a new nonreductionist understanding of institutional change and to
document a richer set of actors and processes in global governance.
We recognise that attention to these actors and processes has been an
important part of the SRSG‘s work during the second phase of his mandate.6
Drawing on new governance scholarship and Ruggie‘s own theoretical work in the
area of social constructivism and the global public domain, we nonetheless suggest
that the SRSG‘s decision to include reference to the duties and responsibilities of
only states and businesses in the PRR framework was ultimately a mistake.
Explicit inclusion of the participatory roles and responsibilities of civil society
organisations and multistakeholder initiatives – recognised as tantamount in
importance and complementary to those of states and businesses at all levels of
global governance – would have made a stronger conceptual policy framework
and, critically, one with more and better opportunities for operationalisation on the
Norms can be understood from a variety of perspectives, much of the criticism focused on
claims that the Norms inappropriately sought to extend to corporations many of the same
human rights responsibilities that applied to states, did so without adequately attending to
the differences between the two types of actors or between ‗voluntary‘ and ‗non-voluntary‘
duties, and engaged in conceptual ambiguities and certain doctrinal excesses that extended
international law beyond its present scope. See e.g. UN Doc. E/CN.4/2006/97 (―[I]n the
SRSG‘s view the divisive debate over the norms obscures rather than illuminates promising
areas of consensus and cooperation among business, civil society, governments, and
international institutions with respect to human rights‖); J. G. Ruggie, ‗Business and
Human Rights: The Evolving International Agenda‘, 101 American Journal of
International Law (2007) pp. 819–840.
5 The term ‗new accountability‘ has been used to describe the parallel trend in the
human rights context to the uptake of ‗new governance‘ in the regulatory field. See T.
Melish, ‗Maximum Feasible Participation of the Poor: New Governance, New
Accountability and a 21st Century War on the Sources of Poverty‘, 13 Yale Human Rights
& Development Law Journal (2010) pp. 1–133. It is best understood as a type of new
governance, and hence is not differentiated from new governance here.
6 See A/HRC/RES/8/7 (extending Ruggie‘s mandate by three years and tasking him
with ‗operationalizing‘ the framework by providing ‗practical recommendations‘ and
‗concrete guidance‘ to states, businesses, and other social actors on its implementation).
Electronic copy available at: http://ssrn.com/abstract=1906834
5-8-2011] ‘New Governance’ Lessons for the Ruggie Framework 3
ground. Recognition of this important participatory role is particularly critical, we
contend, given the nature of the governance gaps, and the misaligned incentive
structures that underlie them, that Ruggie himself identifies as the ‗root cause‘ of
the business and human rights predicament we face today.7
New governance scholarship provides important insights into this
problematic, from both normative and instrumental perspectives. In the following
four sections we thus offer a constructive critique of the Ruggie proposal from a
new governance perspective. After situating Ruggie‘s PRR policy framework
within the sociological institutionalist tradition of understanding systemic
transformation, we describe the insights that a new governance approach adds to
the picture, particularly for filling the governance gaps created by globalisation in
the business and human rights context. We then suggest the utility of updating the
schema by adding a fourth ‗participation‘ pillar as the basis for moving forward
and offer elements to support this shift from a dyadic-unidirectional to triadic-
multidirectional structure of shared responsibility in the global public domain.
II. THE RUGGIE PRR POLICY FRAMEWORK: A SOCIOLOGICAL
INSTITUTIONALIST APPROACH TO SYSTEM TRANSFORMATION
In his work as SRSG, Professor Ruggie has identified his mandate‘s primary
objective as ―reduc[ing] or compensat[ing] for the governance gaps created by
globalization‖ in the area of business and human rights.8 Such gaps have grown
particularly wide over the last several decades as business entities have amassed
increasingly expansive rights within the global economic structure. Such rights,
together with new technologies and the increasing ease of transborder migration,
have allowed business interests to circumvent, override, capture or dis-incentivise
state regulatory authority with increasing facility. Correspondingly, Ruggie defines
‗governance gaps‘ in terms of the growing gulf ―between the scope and impact of
economic forces and actors, and the capacity of societies to manage their adverse
consequences‖.9 Recalling his earlier work on embedded liberalism,10 he
underscores that ―markets work optimally only if they are embedded within rules,
customs and institutions‖, and that, as history teaches us, ―markets pose the
greatest risks – to society and business itself – when their scope and power far
exceed the reach of the institutional underpinnings that allow them to function
smoothly and ensure their political sustainability‖.11 ―How to narrow and
7 A/HRC/8/5, p. 3; Ruggie, supra note 2, p. 287.
8 A/HRC/8/5, p. 3.
9 Ibid.
10 See e.g. J. G. Ruggie, ‗International regimes, transactions, and change: Embedded
liberalism in the postwar economic order‘, 26 International Organization (1982) pp. 379–
415.
11 A/HRC/8/5, p. 3.
4 Respect, Protect, Remedy and Participate [5-8-2011
ultimately bridge the[se governance] gaps in relation to human rights‖, he
concludes, ―is our fundamental challenge‖.12
The PRR framework is the policy prescription Ruggie sets forth for meeting
this challenge. It seeks to establish a new common conceptual and policy
framework for understanding the human rights duties and responsibilities of state
and business actors. By embedding these shared understandings within corporate
culture and state practice, he hopes to establish a solid foundation (congruent with
the ‗embedded liberalism‘ he understands to have characterised state-market
relationships in the post-war economic order) for solving the collective action
problems that have allowed abusive corporate activities to proliferate. Ruggie
ascribes these problems in large part to the deontic ‗confusion‘ he believes
currently dominates the field, one in which states and businesses remain uncertain
about the precise nature and scope of the duties they hold. Such confusion, Ruggie
suggests, has led to endless strategic gaming. It has, correspondingly, hindered
development of the underlying rules, customs and institutions within business
culture and practice necessary to constrain corporate excesses. Such embedded
normative and prescriptive institutional understandings are, in Ruggie‘s view,
essential for achieving each of the dual challenges presented by the business and
human rights conundrum: one, ensuring the smooth functioning of competitive
markets and business operations and, two, protecting society from their negative
externalities.13 Achieving the appropriate accommodation between these two
important policy goals defines Ruggie‘s business-friendly normative project.
Significantly, in its construction, the PRR framework closely tracks Ruggie‘s
intellectual commitments in the field of international relations (IR), a point we
believe is important to highlight for understanding both its strengths and
weaknesses as a global project. As a scholar, Professor Ruggie has long been a
prominent critic of neo-utilitarian or rational choice models of IR, charging that, in
their individualistic methodologies and focus on narrow material or economic
interests, they fail to take account of the broader cultural, institutional and
ideational forms and processes that shape social actors‘ outlooks and behaviour.14
An intellectual progenitor of social constructivism, he has thus endorsed a
theoretically-informed approach to the study of international relations that focuses
on how the identities and interests of individual actors, such as corporate entities or
state representatives, are in fact socially constructed in international life.15 Such
construction, he theorises, occurs in important part through the proliferation of
global norms or shared cultural understandings. These shared or ‗intersubjective‘
beliefs ultimately become embedded in human consciousness where they construct
the interests and identities of purposive actors. Once embedded, such normative
understandings become ‗constitutive rules‘ or new ‗social facts‘ that constitute and
12 Ibid. Such gaps ―provide the permissive environment for wrongful acts by
companies of all kinds without adequate sanctioning or reparation‖ (ibid.).
13 Cf. Ruggie, supra note 10.
14 J. G. Ruggie, ‗What Makes the World Hang Together? Neo-utilitarianism and the
Social Constructivist Challenge‘, 52:4 International Organization (1998) pp. 855–885.
15 Ibid., p. 856 (―Constructivism is about human consciousness and its role in
international life‖).
5-8-2011] ‘New Governance’ Lessons for the Ruggie Framework 5
prestructure the domains of action within which individuals operate and
understand their world. Within these domains, ‗socially knowledgeable and
discursively competent actors‘ strategically create and recreate international
structure, engaging in an active process of interpretation and construction of
reality.16 It is toward the creation of such new constitutive rules in state and
business culture that Ruggie‘s project is authoritatively directed.
According to Ruggie, such constitutive rules serve two distinct functions at
the level of the international polity. At an interpretive level, they may take the
form of ―international regimes that limit strictly interest-based self-interpretation
of appropriate behavior by their members‖.17 At a deontic level, they ―may create
rights and responsibilities in a manner that is not simply determined by the
material interests of the dominant power(s)‖.18 Through the global construction and
embedding of constitutive rules in corporate culture, a rule-based ‗logic of
appropriateness‘ may thus come to supplant a rational interest-based ‗logic of
consequences‘ as the direct driver of policy action, a development Ruggie views as
key to normative success.
Importantly, following from this theoretical understanding of how social
change is effectuated in the world, Ruggie‘s intellectual attention is focused less on
the concrete mechanisms through which the material interests of powerful actors
can be leveraged by less powerful actors to promote socially accountable
behaviour, than on the more nebulous international socialisation processes through
which powerful actors, such as states and businesses, are acculturated into new
understandings of socially appropriate behaviour. His focus is ―the general process
by which actors adopt the beliefs and behavioral patterns of the surrounding
culture‖.19 This distinction between ‗social accountability‘ dynamics and ‗social
acculturation‘ processes is critical, we believe, for understanding the nature of the
Ruggie project. In particular, it explains why that project is focused so narrowly on
the normative clarification of the duties and responsibilities of states and
businesses in terms they will find acceptable and consistent with their interests,
rather than on the critical role of other non-state actors in holding states and
businesses concretely to account for their conduct.
Consistent with the PRR framework, corporate actors should thus have
human rights compliance systems in place with five standard components: a
formally articulated human rights policy; a commitment to undertaking ‗impact
assessments‘ as a risk management tool; the integration of the company‘s human
rights policy into operational practice guides; a way to track performance; and
internal redress mechanisms to ensure appropriate remedies where unjustified
harm occurs.20 Likewise, states must have systems in place to address three
component areas: more effective policy alignment, both vertically and
16 Ibid., p. 879.
17 Ibid.
18 Ibid.
19 R. Goodman and D. Jinks, ‗How to Influence States: Socialization and International
Human Rights Law‘, 54 Duke Law Journal (2004) pp. 621-703, 626 (defining ‗sociological
acculturation‘).
20 UN Doc. A/HRC/8/5 (2008).
6 Respect, Protect, Remedy and Participate [5-8-2011
horizontally; market incentives aimed at promoting a corporate human rights
culture; and available systems of human rights redress.21
Such compliance systems track closely what states and corporations already
do or understand their obligations to be. Provided such compliance systems are in
place, the PRR framework suggests that states and corporate entities satisfy their
international duties and responsibilities in the business and human rights context.
The challenge from the framework‘s perspective is to ensure that such systems are
in fact replicated, standardised and, ultimately, internalised in business and
government policies around the globe, a process in which states and businesses
appear to be the primary actors. Indeed, although the system script does integrate
certain incentive-based elements, the driving impulse behind the framework is one
in which states and corporate actors voluntarily conform to the behavioural
expectations of the wider culture as a result of the varying degrees of cognitive and
social pressures that accompany identification with their global reference group.22
To facilitate this process of voluntary uptake and group social conformity,
Ruggie engages in several important framing tactics. Perhaps most importantly, he
avoids identifying corporate duties as ‗legally‘ mandated or compulsory, preferring
to identify them simply as ‗responsibilities‘ or ‗social duties‘ emanating from the
‗social license‘ businesses need to operate.23 The primary frame of compliance for
business, then, is not legal regulation or judicial oversight, but rather shareholder,
consumer and societal preferences. Distinguishing corporate ‗social
responsibilities‘ from both ‗moral‘ and ‗legal‘ duties, Ruggie reserves the latter
exclusively for states, albeit under a reduced set of prescriptions that emphasise
market-based promotional measures and the provision of post-hoc, individual-
oriented grievance procedures. At the same time, Ruggie organises the framework
principally around highly definitionally-maleable policy concepts such as ‗due
diligence‘ and ‗risk management systems‘ that are already widely used and
accepted in corporate culture and/or state-oriented human rights practice. Both
framing tactics are designed to facilitate a familiarity and comfort with the
framework that will promote voluntary buy-in and elite engagement with the new
international regime, while allowing a large degree of creative ambiguity about
what such engagement must in fact entail. The Guiding Principles, though
providing some degree of policy direction, allow a similar measure of flexibility
and business-determined discretion.24
While Ruggie and other constructivists affirm that social constructivism is
not itself a theory of international relations,25 Ruggie‘s approach nests comfortably
within institutional theory. Specifically, it represents an expression of ‗sociological
21 Ibid.
22 Cf. R. Goodman and D. Jinks, ‗Incomplete Internalization and Compliance with
Human Rights Law‘, 19 European Journal of International Law (2008) pp. 725-748, 726
(describing driving force behind acculturative mechanisms of international law).
23 UN Doc. A/HRC/8/5; UN Doc. E/CN.4/2006/97.
24 UN Doc. A/HRC/17/31.
25 Ruggie, supra note 14; M. Finnemore and K. Sikkink, ‗Taking Stock: The
Constructivist Research Program in International Relations and Comparative Politics‘, 4
Annual Review of Political Science (2001) pp. 391–416.
5-8-2011] ‘New Governance’ Lessons for the Ruggie Framework 7
institutionalism‘26 or ‗idealist institutionalism‘.27 These approaches share the
central contention of institutional theory that ―[w]orldwide models define and
legitimate agendas for local action, shaping the structures and policies of nation-
states and other national and local actors in virtually all of the domains of
rationalized social life‖.28 Unlike other ‗new institutionalisms‘ associated with
political science and economics, which Ruggie criticises as ‗neo-utilitarian‘, they
nonetheless do not draw expressly on rational choice theory and material interest
as the driver of policy action. Rather, emphasising norms and the political process
dynamics that lead to norm emergence, sociological institutionalists attribute the
causal behaviour of social actors to their context or to higher-order factors, such as
scripts or schemas drawn from shared cultural systems. Standard research designs
in the field thus seek to document the effect of the world polity and global norms
on national policy and structure, showing how ‗world culture‘ reconfigures state
and other policies in a range of policy arenas.29
Viewed within this broader theoretical frame Ruggie‘s PRR project makes
particular sense. It is designed to create, in Ruggie‘s words, ―an authoritative focal
point‖ – a common global script for worldwide diffusion and adoption – on what
human rights compliance systems look like within both corporate and state entities.
Once approved, that global script would henceforth be made available for global
diffusion and, through internationally organised processes of persuasion and
socialisation, individual actor mimicry, uptake and internalisation. Thus, Ruggie
aims to stimulate an international socialisation process through which the
individual components of his global script are embedded as a new set of
constitutive rules that define and prestructure the scope of socially-acceptable
corporate conduct. When this occurs, the ‗life-cycle‘ of the underlying norms will
have been completed, having passed through the iterative stages of persuasion,
socialisation and ultimately internalisation.30 The resulting taken-for-granted
quality of the underlying norms would henceforth address the misaligned incentive
26 See M. Schneiberg and E. Clemens, ‗The Typical Tools for the Job: Research
Strategies in Institutional Analysis‘, 24:3 Sociological Theory (2006) pp. 195–227
(defining ‗sociological institutionalism‘).
27 L. Fransen, ‗Competition and Convergence in Private Governance: A Political-
Institutional Analysis of Transnational Labour Standards Regulation‘, in Governance: An
International Journal of Policy, Administration and Institutions (forthcoming 2011) pp. 1–
40 (defining idealist institutionalism).
28 J. W. Meyer et al., ‗World Society and the Nation-State‘, 103 American Journal of
Sociology (1997) p. 145.
29 Schneiberg and Clemens, supra note 26; M. Finnemore, ‗Norms, Culture and World
Politics: Insights from Sociology‘s Institutionalism‘, 50 International Organization (1996)
pp. 325–347; Meyer et al., ibid., pp. 144–181; J. W. Meyer and M. T. Hannan (eds.),
National Development and the World-System: Educational, Economic and Political
Change, 1950–1970 (Univ. of Chicago Press, Chicago, 1979). Countertrends nonetheless
appear within ‗critical constructivism‘. See M. Barnett and K. Sikkink, ‗From International
Relations to Global Society‘, The Oxford Handbook of International Relations (2008) pp.
62–83 (citing examples).
30 M. Finnemore and K. Sikkink, ‗International Norm Dynamics and Political Change‘,
52 International Organization (1998).
8 Respect, Protect, Remedy and Participate [5-8-2011
structure and collective action problems that Ruggie currently attributes to the
absence of consensus regarding appropriate policy forms and outcomes. Like the
social consensus around business conduct that Ruggie has identified in his work on
‗embedded liberalism‘ in the post-war economic era, such a consensus would
resolve the modern governance gaps that define today‘s business and human rights
context.
In this regard, consistent with social constructivist approaches more
generally, the PRR framework does not attempt to make claims about the content
of the relevant social structures or the nature of the agents at work in these
processes.31 It merely assumes or understands that these complex processes of
persuasion and socialisation take place somewhere and somehow. The framework
can thus best be seen as a policy expression, not of any particular set of
mechanisms for causing social change, but rather of a particular social theory
about the nature and causal direction of social change: that it is shaped primarily
by ideational factors rather than material ones, and that the most important of these
are ‗intersubjective‘ beliefs widely shared across world culture.32
This theoretical approach is undoubtedly a necessary complement to
neorealist and neoliberal approaches to IR that have traditionally focused too
heavily on materialist perspectives and individualist methodologies. Social
constructivism has correspondingly played an important role in explaining
worldwide institutional change that cannot be accounted for exclusively or even
primarily by reference to rational material self-interest of distinct social actors or to
the effects of coercion or persuasion-based models alone.33 This is particularly true
with respect to human rights norms.34 Nevertheless, constructivist or sociological
institutionalist approaches suffer from serious shortcomings when ideational
factors become the exclusive or near exclusive focus of policy analysis or regime
design, letting the important insights of economic institutionalism and the ‗logic of
consequences‘ recede to the margins. By failing to take more explicit account of
the actual mechanics of and actors involved in effectuating social change, we
believe the PRR project has drifted dangerously in this direction.
In this regard, there are several discomfiting aspects of the Ruggie PRR
framework and approach, two of which we highlight. Both spring from the
framework‘s basis in acculturation-based models of social change and
corresponding overemphasis on promoting a ‗logic of appropriateness‘ from
above, while paying insufficient attention to the operational structures and
mechanics necessary to create a corresponding ‗logic of consequences‘ from
31 Ibid. (discussing social constructivist approaches).
32 Ruggie, supra note 14; Finnemore and Sikkink, supra note 30.
33 Goodman and Jinks, supra note 22, pp. 725–727 (defending acculturation-based
models, both descriptively and empirically, on the ground that neither coercion- nor
persuasion-based accounts of social influence explain the twin observed patterns of
structural isomorphism and decoupling that exist in the world with respect to states‘
embrace of international law norms).
34 T. Risse et al. (eds.), The Power of Human Rights: International Norms and
Domestic Change (Cambridge University Press, Cambridge, 1999); O. Hathaway, ‗Do
Human Rights Treaties Make a Difference?‘, 111 Yale Law Journal (2002) pp. 1935-2042.
5-8-2011] ‘New Governance’ Lessons for the Ruggie Framework 9
below. While certain scholars defend this focus on the ground that acculturative
processes may indirectly promote opportunities for the emergence of domestic-
level social movements,35 we believe that any regime design that fails to take such
essential social actors into specific operational account is a deficient and
incomplete one.
The first concerning aspect of the Ruggie PRR framework lies in its central
focus on the diffusion of a singular global human rights script as the solution to the
lack of consensus around appropriate policy forms in the corporate accountability
context. There are two principle risks associated with this search for a definitive
authoritative centre, especially with its accompanying trend toward orthodoxy and
institutional isomorphism. Most directly, an overemphasis on institutional
isomorphism as the basis of human rights compliance tends inevitably to lead to
strategically calculated and formalistic uptake practices, extensively described in
the literature on ‗decoupling‘36 and ‗creative compliance‘.37 This phenomenon,
popularly known as ‗paper compliance‘ or ‗greenwashing‘, has been widely
observed in the corporate accountability context and is the principle criticism
lodged against acculturation-based models of social influence. In his recent study
of private governance arrangements in the garment industry, for example, Luc
Fransen has documented how companies have used formal policy uptake to avoid
exposure by activists, while failing to engage in the more difficult and expensive
process of actual implementation.38 He has also demonstrated that while corporate-
led private governance initiatives have achieved a high level of policy
convergence, they have generally done so by defining requirements in ways that
require very little actual change in corporate operations. These decoupling
processes are also common in other fields,39 although they can be countered by
effective competitor programmes and social monitoring.40
At a different level, an overemphasis on an authoritative centre allows for
certain ‗strategies of resistance‘ from businesses wishing to avoid real change. An
example of this phenomenon is documented in the important fieldwork-based
contribution in this volume by Haines, MacDonald and Balaton-Chrimes, who
detail the justificatory strategies of businesses in the Indian tea sector for failing to
comply in practice with human rights safeguards that they nonetheless steadfastly
35 Goodman and Jinks, supra note 22, pp. 733–743.
36 J. W. Meyer et al., ‗World Society and the Nation-State‘, 103 American Journal of
Sociology (1997) p. 144; Goodman and Jinks, supra note 19, pp. 651–655.
37 C. Whelan and D. McBarnet, Creative Accounting and the Cross-Eyed Javelin
Thrower (John Wiley and Sons, New York, 1999).
38 Fransen, supra note 27.
39 See sources in supra note 36 (citing examples).
40 See e.g. W. Laufer, ‗Social Accountability and Corporate Greenwashing‘, 43:3
Journal of Business Ethics (2003) pp. 253–261; A. Lubitow and M. Davis, ‗Pastel
Injustice: The Corporate Use of Pinkwashing for Profit‘, 4:2 Environmental Justice (2011)
pp. 139–144; C. Marquis and M. Toffel, ‗The Globalization of Corporate Environmental
Disclosure: Accountability or Greenwashing?‘, Harvard Business School Working Paper
No. 11-115 (2011), <papers.ssrn.com/sol3/papers.cfm?abstract_id=1836472>.
10 Respect, Protect, Remedy and Participate [5-8-2011
affirm their adherence to and compliance with as universal norms.41 In the absence
of institutionally-recognised mechanisms for affected communities and other civil
society monitors to contest the empirical basis of such justificatory narratives and
to assert their own understandings of how community rights are affected, it is
difficult to expect the PRR framework, as a universalising global script, to lead to
anything but suboptimal localised implementation. It is for this reason that we
disagree with Sullivan and Hachez‘s contribution in this volume, in which they
reproach the Ruggie project not for its inattention to civil society participation
processes, but rather because it does not create a more detailed standardised check-
list for corporations to voluntarily adhere to.42 Again, in the absence of a role for
participatory verification, monitoring, assessment and reconstruction by affected
stakeholders themselves, reliance on such standardised checklists for uniform
compliance is unlikely to facilitate much more than paper compliance and other
shallow or superficial institutional reform efforts.
In this latter respect, an overemphasis on individual mimicry of standardised
global forms tends likewise to lead to decontextualised systems that are
unresponsive to localised problems or particular community needs. This is
particularly problematic in the human rights context, where human rights
requirements must be defined not by standardised texts, but according to the varied
conditions and evolving perspectives of affected communities.43 Although Ruggie
cautions that the framework is not intended to serve as a ―tool kit, simply to be
taken off the shelf and plugged in‖,44 there is no serious attempt to specify how due
diligence and other requirements should be structured to be able to flexibly and
responsively take account of varying contexts and the multiple voices that may be
affected by corporate conduct in discrete circumstances.45 The remedy pillar,
though nominally established to achieve this end, is inadequate for addressing the
varied and multiple means through which civil society actors participate in the
construction, contestation and reconstruction of both local and global norms.
A second troubling aspect of the PRR framework, closely related to the first,
is its embrace of an understanding of systemic transformation that is
predominantly unidirectional in causation. That is, individual actors in the world
polity adopt new rules, customs and institutions in response to a global framework.
41 See F. Haines, K. MacDonald and S. Balaton-Chrimes, ‗Contextualising the
Business Responsibility to Respect: A Pragmatic Process Towards a Pragmatic Output‘, in
this volume.
42 See R. Sullivan and N. Hachez, Human Rights Norms for Businesses: The Missing
Piece of the Ruggie Jigsaw – The Case of Institutional Investors‘, in this volume.
43 See generally B. Rajagopal, International Law from Below: Development, Social
Movements and Third World Resistance (Cambridge University Press, Cambridge, 2003);
M. Mutua, ‗Standard Setting in Human Rights: Critique and Prognosis‘, 29 Human Rights
Quarterly (2007) pp. 547–630 (critiquing lack of third world perspectives in mainstream
human rights standard-setting processes).
44 UN Doc. A/HRC/17/31 (2011), para. 15.
45 Although Ruggie‘s 2011 Guiding Principles do recognise the importance of
transparency and participation in due diligence reporting, these aspects remain largely
undeveloped and are not structured in a way that they can be invoked as rights. Ibid.
5-8-2011] ‘New Governance’ Lessons for the Ruggie Framework 11
While political process dynamics are key to sociological institutional theory,46 the
causal imagery tends to move in one primary direction: from ‗higher‘ international
frameworks to ‗lower‘ individual actors. This is true even as the precise
mechanisms through which that unidirectional causality occurs are rarely described
in the theory-based literature.47 This leads to several important blind-spots, each
apparent in the PRR framework. First, it overlooks the ways that global norms are
constituted and reconstituted from below – a process particularly characteristic of
human rights claims, which inevitably arise as historically- and contextually
contingent challenges to power.48 Similarly, it fails to identify feedback effects
from local agents onto global structures. In these ways, sociological institutional
approaches can, in Finnemore and Sikkink‘s evocative words, ―begin to treat
international norms as a global ‗oobleck‘ that covers the planet and homogenizes
us all‖.49 Such approaches tend, correspondingly, to undervalue the critical role of
local actors in both creating relevant human rights meaning in accordance with
local values, mores and conditions and, equally important, in holding actors
accountable to such meanings in locally effective and meaningful ways. They tend
likewise to be insufficiently attentive to the importance of dynamic learning
processes, competitive experimentalism, and how ‗best‘ and ‗worst‘ practices at
the individual actor level must be tracked, systematised and disseminated for
global learning and responsive adaptation in distinct local contexts. All of these
processes are necessarily multidirectional, involving multiple stakeholders in
constantly evolving communication, contestation and informational exchange.
This is not to say that sociological institutional or acculturation-based
approaches to social influence are irrelevant to the design of effective international
human rights regimes. To the contrary, we believe they are critical, especially in
understanding the multiple causal pathways by which diverse actors come to
respect international human rights norms. However, as even sociological
institutionalism‘s most ardent defenders acknowledge, acculturative forces do not
inevitably increase respect for human rights norms; indeed, they may produce
highly negative results.50 Designing a human rights regime exclusively or even
46 Ruggie, supra note 14.
47 Exceptions appear in the works of Keck, Sikkink, Finnemore, Roppe and Risse, who
have analysed the techniques used by activist groups, including strategic use of
information, symbolic politics, leverage and accountability politics, issue framing and
shaming. See e.g. M.E. Keck and K. Sikkink, Activists Beyond Borders: Advocacy
Networks in International Politics (Cornell University Press, Ithaca, 1998); T. Risse et al.
(eds.), The Power of Human Rights: International Norms and Domestic Change
(Cambridge University Press, Cambridge, 1999). Such scholars nevertheless tend to
recognise the limitations of social constructivist theories, especially in their more recent
work, and the strengths of alternative theories in explaining evolving institutional behavior.
See e.g. Barnett and Sikkink, supra note 29, p. 63.
48 See e.g. E. Kamenka, ‗Human Rights, Peoples‘ Rights‘, in James Crawford (ed.),
The Rights of Peoples (Clarendon, Oxford, 1988); Rajagopal, supra note 43.
49 Finnemore and Sikkink, supra note 25, p. 397 (citing Dr. Seuss‘s 1970 Bartholomew
and the Oobleck).
50 R. Goodman and D. Jinks, ‗Incomplete Internalization and Compliance with Human
Rights Law: A Rejoinder to Roda Muchkat‘, 20 European Journal of International Law
12 Respect, Protect, Remedy and Participate [5-8-2011
primarily around such forces can thus be short-sighted and counterproductive.
Rather, optimal human rights regime design requires that express attention be
given to the multiple and evolving sets of actors and institutions that can take up
global human rights scripts to press for compliance within domestic political and
legal systems, using a variety of persuasion- and coercion-based incentive systems.
It requires attention not only to interest discovery among elite players, but also to
interest conflict and how less powerful actors seek to narrow power asymmetries
through organised mechanisms of social leverage.
Clearly missing from the PRR framework, then, is concerted attention to
how processes of socialisation and institutional change in fact occur. Through what
mechanisms or channels? Which actors are most important in such processes and
why? While other social constructivist theorists, such as Sikkink, Finnemore, Risse
and Keck, have spent significantly more time unpacking these processes of social
change, especially with regard to the critical role played by civil society in global
governance,51 attention to ensuring the on-the-ground operation of such processes
is notably absent from Ruggie‘s PRR framework. This is true even as Ruggie in his
scholarly work has himself broadly observed the rising role of new actors in
reconstituting the ‗global public domain‘.52
In this respect, we remain unconvinced by framework supporters who argue
that this participatory governance concern is effectively addressed by the ‗remedy‘
pillar. Not only was that pillar hard-fought by the human rights community, which
lobbied throughout the SRSG‘s mandate for more attention to mechanisms of civil
society-directed accountability processes,53 the remedy pillar is one that focuses on
post-hoc, individual-oriented grievance procedures within state and corporate
institutions. It is also one directed primarily at breaches of ‗legal‘ rules,
substantially limiting its direct application to the ‗social duties‘ of businesses.
Although critically important, such judicial and non-judicial ‗remedial‘
mechanisms are only one set of tools in a much broader toolbox of strategies and
tactics increasingly used by non-governmental organisations (NGOs) and other
civil society groups for holding state and corporate actors to account for human
rights harm.54 Such strategies are widely recognised as key to promoting actual on-
the-ground change in corporate conduct, especially in line with new governance
approaches. The failure to recognise these additional strategies and actors directly
(2009) pp. 443–44 (―Acculturation often produces negative results such as dangerous
national security practices, dysfunctional environmental laws, exorbitant administrative
bureaucracies, and rights-based policies that are poorly suited to local needs‖). As such,
Goodman and Jinks disavow that ―acculturation is the ideal or preferable social mechanism
around which to design international human rights regimes‖, even as it should be ―part of
the larger conversation‖. Goodman and Jinks, supra note 22, note 10.
51 See supra note 47.
52 J. G. Ruggie, ‗Reconstituting the Global Public Domain: Issues, Actors and
Practices‘, 10 European Journal of International Relations (December 2004) pp. 499–531.
53 Interview with Irene Khan, Secretary-General of Amnesty International from 2001–
2009 (May 2011).
54 Melish, supra note 5, pp. 55–59, 68–110.
5-8-2011] ‘New Governance’ Lessons for the Ruggie Framework 13
within the PRR framework, we contend, is a serious shortcoming in its
construction.
The foregoing operational limitations are, we suggest, not merely a
‗pragmatic‘ or ‗diplomatic‘ concession to promote state and business compliance
(as many commentators suggest), but also a direct reflection of the framework‘s
theoretical underpinnings. As discussed, those underpinnings are grounded in the
understanding that, through complex processes of elite socialisation around group
norms, rational interest-based calculations of individual actors may come to take a
backseat to embedded understandings of appropriate social conduct. This
assumption is nonetheless made without addressing precisely how that process is to
be effectuated, especially given the SRSG‘s explicit recognition of the governance
gaps that have heretofore made state regulation and voluntary corporate social
responsibility initiatives by themselves ineffective at promoting change. As a
result, the Ruggie PRR framework pays insufficient attention to the need for new
kinds of actors and accountability systems capable of leveraging the material
interests of corporate actors and aligning their material and extra-material interests.
This may be its greatest weakness. While we agree with Ruggie that norms and
reputation matter for interests, and often matter greatly, there is a need in the PRR
framework for greater attention to creating mechanisms that can ensure that a
‗logic of consequences‘ (economic institutionalism) accompanies the ‗logic of
appropriateness‘ (sociological institutionalism) approach of Ruggie.55
New governance scholarship, which relies on both sociological and
economic models of institutionalism, provides important insights into each of these
key limitations in the Ruggie PRR framework.
III. A NEW GOVERNANCE PERSPECTIVE ON INSTITUTIONAL
TRANSFORMATION: RECOGNIZING AND LEGITIMATING THE ROLES AND
RESPONSIBILITIES OF NEW ACTORS AND PROCESSES
‗New governance‘ scholarship reflects a growing recognition that the
assumptions of an authoritative centre and unidirectional causation do not reflect
some of the most important lessons of regulatory governance gleaned in the past
several decades. New governance approaches have, in this sense, emerged as a
corrective to prior models of regulatory governance that assumed that legalised
compliance with uniform rules generated and enforced from the centre was the
most effective way of regulating public and private conduct. Emanating from the
conviction that centralised regulatory control too often stifles innovation,
competition, creativity, economic efficiency and local responsiveness, new
governance approaches reject that view. They draw on a more varied set of actors
and more varied set of techniques that emphasise regulatory fit, adaptability,
efficiency, competition, stakeholder negotiation and continuously revised
55 Accord Goodman and Jinks, supra note 19, p. 444 (citing ambition of scholarly
project as contributing to the development of an integrated theory of human rights regime
design – one that, by definition, accounts for all mechanisms of social influence, including
acculturation, persuasion, coercion and managerialism).
14 Respect, Protect, Remedy and Participate [5-8-2011
performance measures. They correspondingly tend to deemphasise reliance on
formal rules, investing a more decentralised, often increasingly non-governmental
set of agents with substantial discretion in determining the means through which
goal-specific performance indicators will be met.
At the same time, new governance models seek to incorporate new
mechanisms of stakeholder participation and public accountability as a way to
retain democratic legitimacy and ensure community responsiveness. A principal
way of doing so is through incentive and result-based performance evaluation
systems that impose information-generation and disclosure requirements and
reward entities for meeting performance benchmarks. It is expected that material
incentives, together with stakeholder-accessible performance evaluation, will lead
to greater local competition, the scaling up of best practices, and the potential for
constant renewal and responsiveness to changing circumstances and the diversity
of local needs. New governance regimes thus seek to redefine state-society
interactions, with multiple stakeholders assuming traditional roles of governance.
Variously described in the literature as ‗reflexive law‘, ‗collaborative
governance‘, ‗decentred regulation‘ and ‗democratic experimentalism‘, among
other descriptors,56 new governance approaches are highly influential in almost all
fields of governance, at both national and global levels. International financial
institutions and national civil service sectors, for their part, embrace the model
under a ‗new public management‘ rubric, while the European Union (EU) applies
it as a supranational governance tool through the Open Method of Coordination.57
Indeed, in almost every field of governance, many types of actors play
increasingly important authoritative roles, as is described in more detail below. It
is now likewise understood that effective governance institutions must be
responsive and dynamic: they must be committed to the transparent production and
disclosure of information, learn from experience, listen to stakeholders, and adapt
to particular circumstances. To accommodate these basic insights, new governance
scholarship often lists a broad set of institutional changes that are reframing how
governance structures are, can be, and should be exercised in the 21st century.
These include: increasing decentralisation and subsidiarity; growing roles for non-
state actors; widespread stakeholder participation; growing use of flexible and
adaptable mechanisms such as information production and sharing duties; soft law,
framework agreements, voluntary standards and open coordination; and stress on
dynamic governance mechanisms such as competition, organisational management
systems, performance monitoring, experimental implementation mechanisms, and
the like.58
56 Others include ‗soft law‘, ‗outsourcing regulation‘, ‗reconstitutive law‘, ‗revitalizing
regulation‘, ‗regulatory pluralism‘, ‗meta-regulation‘, ‗negotiated governance‘, ‗responsive
regulation‘ and ‗post-regulatory law‘.
57 For citations, see Melish, supra note 5, pp. 32–33, notes 131–133.
58 See e.g. O. Lobel, ‗The Renew Deal: The Fall of Regulation and the Rise of
Governance in Contemporary Legal Thought‘, 89 Minnesota Law Review (2004) pp. 342–
470. For applications in the transnational sphere, see e.g. K. W. Abbott and D. Snidal,
‗Strengthening International Regulation Through Transnational New Governance:
Overcoming the Orchestration Deficit, 42 Vanderbilt Journal of Transnational Law (2009)
5-8-2011] ‘New Governance’ Lessons for the Ruggie Framework 15
Discussion of these new governance approaches is useful for understanding
the limitations of the Ruggie PRR framework and how it might conceptually and
operationally be enhanced. This is particularly true with respect to three core
components of new governance regimes: (1) the critical role played by civil society
actors in systems of global governance; (2) new and innovative processes for
holding a broader set of social actors to account for achieving or failing to achieve
distinct sets of social goals, targets or benchmarks; (3) and the necessity of
institutionalising systems and processes of orchestration for the facilitation of
cross-sector social learning and information exchange. We address each in turn.
A. New Actors, Decentered Processes, and Widespread Stakeholder
Participation
While it was once assumed that states played the exclusive, or at least
controlling, role in governance systems, it is increasingly recognised that global
governance is today conducted through the operation of ever more dense and
interconnected networks of actors. These actors include not only states and
businesses, but also all levels of civil society and civil society organisations
(CSOs) – from individual norm entrepreneurs, to grassroots community-based
organisations, to issue- or identity-motivated NGOs, to religious groups, labour
organisations, and consumer or credit associations, on to a wide range of
transnational advocacy networks and multistakeholder initiatives. Often working
closely with intergovernmental organisations and industry networks, such actors
have become increasingly active in every facet of regulatory policy, from standard
setting and lawmaking through adjudication, monitoring and enforcement, at local
and global levels alike. As their respective interests, networks and capabilities
continuously evolve, the roles they play can vary significantly over both time and
space. Their involvement has in fact become so important to the production and
revision of multilayered governance structures that international law and
governance institutions are recognised to ―increasingly become part of the problem
if they cannot somehow adapt to this current reality‖.59
New governance regimes rely heavily on such actors for the legitimacy,
efficiency and accountability of their operations. Indeed, traditional state-centred
regulatory systems had already manifested a decades-long movement toward
expanded public participation, deliberation, consultation and transparency; so it is
not surprising that increasingly pluralistic regulatory systems would adopt similar
practices. The primary traditional justifications have been efficacy and legitimacy:
pp. 501–578; E. Meidinger, ‗Private Import Safety Regulation and Transnational New
Governance‘, in C. Coglianese, A. Finkel and D. Zaring, Import Safety: Regulatory
Governance in the Global Economy (University of Pennsylvania, Philadelphia, 2009) pp.
233–256; Melish, supra note 5; J. Scott and D. Trubek, ‗Mind the Gap: Law and New
Approaches to Governance in the European Union‘, 1 European Law Journal (2002) pp.
1–18.
59 M. L. Schweitz, ‗NGO Participation in International Governance: The Question of
Legitimacy‘, 89 Proceedings of the Annual Meeting (American Society of International
Law), Structures of World Order (April 5–8, 1995), pp. 415–420.
16 Respect, Protect, Remedy and Participate [5-8-2011
(1) the more information and feedback a regulatory programme garners, the more
likely its activities are to be fitting and effective;60 (2) the more regulated parties
and beneficiaries participate in and understand a regulatory programme, the more
likely they are to view it as appropriate and legitimate.61 CSOs bring essential
knowledge and expertise to global problem-solving and, by relying on their global
networks and communication strategies, they are able to amplify local voices,
spotlight problems and spread awareness in ways scarcely imaginable a generation
ago. In this way, CSOs likewise play essential accountability roles, holding other
social actors, both public and private, to their social, policy and legal commitments
and to other community standards of socially acceptable conduct. Accountability
implies, in this regard, ―that some actors have the right to hold other actors to a set
of standards, to judge whether they have fulfilled their responsibilities in light of
these standards, and to impose sanctions if they determine that these
responsibilities have not been met‖.62 Drawing on these core elements – especially
those of information transparency, social actor responsibility, performance
measures and social sanction – civil society groups have increasingly insisted on
the right of communities most affected by human rights misconduct to hold other
community members and social actors to a set of rights-based performance
standards related to those rights, to independently monitor and assess compliance
with those standards, and to impose some form of penalty or sanction where
performance is objectively inadequate or where justificatory or process
requirements are not met.63 To establish the normative and institutional framework
within which to do this, such movements draw directly on the substantive and
procedural standards of international human rights law, particularly the legal
process and accountability relationships it creates between distinct social actors,
both public and private.64
They do this through a variety of strategies. They collect and channel
information, lobby and advocate, educate and set agendas, participate in dispute
resolution, implement policies and programmes, collaborate in policy and
lawmaking, monitor and assess conduct through impact assessments, fact-finding
and reporting, and impose positive and negative incentives on behaviour through
certification, grading and auditing strategies – strategies that rely increasingly on
social and consumer power in the marketplace.
Perhaps the most striking expansion in non-state activity has been in
performance monitoring and enforcement. Thus, civil society actors play a critical
role in developing indicators and benchmarks capable of measuring priority
concerns, assessing social actor conduct against those measures, and widely
publicising successes and failures in meeting appropriate benchmarks. Such
60 E.g. J. Freeman, ‗Collaborative Governance in the Administrative State‘, 45:1
UCLA Law Review (1987).
61 T. Tyler, Why People Obey the Law (Yale University Press, New Haven, 1990).
62 R. W. Grant and R. O. Keohane, ‗Accountability and Abuses of Power in World
Politics‘, 99 American Political Science Review (2005) p. 29.
63 Melish, supra note 5, pp. 57–58.
64 Ibid.
5-8-2011] ‘New Governance’ Lessons for the Ruggie Framework 17
strategies have been particularly important in the human rights context, where civil
society actors engage in ‗shadow reporting‘ under human rights treaties to
independently assess government conduct in accordance with local experience and
otherwise seek to hold a wide range of actors to account for conduct that fails to
accord with minimum standards of socially-appropriate conduct.
At the same time, provisions for ‗citizen suit‘ enforcement have proliferated
in many fields of law, from environment to competition, in both common and civil
law systems.65 The rise of non-governmental enforcement mechanisms has been
driven in many ways by resource concerns, but also by a desire to provide a check
on state discretion. Governments simply cannot deploy sufficient enforcement
resources across the broad sweep of activities that must be regulated by modern
governance systems. They have learned to partly ameliorate this problem by
authorising enforcement suits by non-governmental actors and offering incentives
(either reimbursement of litigation costs or portions of penalties) for successful
suits. This has the twin benefits of forcing violators to internalise a larger
proportion of total enforcement costs and removing those costs from state budgets.
Many private enforcement provisions are also driven by an implicit or explicit
desire to limit the absolute discretion of government officials over regulatory
enforcement. By creating an alternative enforcement mechanism, they create an
additional accountability mechanism that can lead to increased predictability and
legitimacy of the system.66 In different situations, non-governmental enforcers can
be civil society groups, business associations or even competitors.67
Non-state actors have also become very active in the development,
promulgation and adjudication of standards. The modern version of this practice is
often traced back to the founding of the International Organization for
Standardization (ISO) after World War II to define transnational product standards
to facilitate trade, although there are earlier examples.68 The ISO system provides
not only for the development of standards outside governmental processes, but also
for their adjudication. That is, independent non-governmental actors, often
contracted by either a producer or a buyer, determine that products and
manufacturing processes conform to the standards. They thus provide the same
kind of ‗trust‘ in the producer that a government regulatory approval might
provide.
Examples of regulation by non-state actors abound across industries and
issues areas.69 A prominent example is the Forest Stewardship Council, which
65 E.g. B. Boyer and E. Meidinger, ‗Privatizing Regulatory Enforcement: A
Preliminary Assessment of Citizen Suits Under Federal Environmental Laws,‘ 35 Buffalo
Law Review (1985) pp. 834–965; S. Casey-Lefkowitz et al., ‗The Evolving Role of
Citizens in Environmental Enforcement‘, Fourth International Conference on Environment
and Enforcement (Chiang Mai, Thailand, 1996), <www.inece.org/4thvol1/futrell.pdf>.
66 I. Ayres and J. Braithwaite, Responsive Regulation: Transcending the Deregulation
Debate (Oxford, New York, 1992).
67 Ibid., p. 158.
68 E.g. standards for organic food developed in Germany in the 1920s and standards
for electrical products before then. See e.g. Meidinger, supra note 58, pp. 233–256.
69 Abbott and Snidal, supra note 58 (governance triangle).
18 Respect, Protect, Remedy and Participate [5-8-2011
certifies sustainable forestry around the world. It is a multi-stakeholder initiative
comprised of social, economic and environmental chambers that provides its own
mechanisms for setting global, national and subnational forest management
standards, as well as for certifying compliance and sanctioning non-compliance.70
The standards incorporate global, national and local expectations for proper forest
management, including human rights and environmental ones. The sanctioning
process is largely driven by independent civil society organisations that monitor
producer behaviour and seek to leverage transnational product chains and
consumer expectations to promote adoption and compliance by firms.71
While non-governmental standards typically begin as ‗voluntary‘, they often
become effectively compulsory through incorporation in powerful market chains.
Moreover, it is not uncommon for state legislatures and agencies to adopt and
make them legally compulsory.72 Thus, many modern governance standards are
produced, promulgated and implemented by varying combinations of private and
governmental actors. This expanded panoply of actors, however, is only part of the
story. Equally important is the growing reliance on new governance processes.
B. New Governance Accountability Processes
The incorporation of multiple kinds of actors into legislative, adjudicatory,
monitoring and enforcement roles has been accompanied by a growing focus on
participatory and process-oriented dimensions of governance. This development
corresponds to an understanding that compliance with fixed rules applied
uniformly across contexts can lead to suboptimal outcomes. Not only does it
frequently fail to take localised circumstances into account, but it may fail to draw
on community resources and expertise in ways that promote democratic control
and legitimacy. This is particularly true given the contextual and evolving nature
of problems faced by distinct communities, requiring often unique and targeted
solutions that one-size-fits-all solutions determined from above generally cannot
fully accommodate. Such participatory and process-oriented approaches likewise
prioritise mechanisms for policy learning, adaptation and constant improvement in
result-oriented goals.
One of the most important of these participatory processes is performance
monitoring.73 Following the maxim that it is not possible to manage what is not
measured, the monitoring of practices and impacts has become a near universal
criterion for new governance. Performance monitoring in this regard entails several
steps. First, it requires that an entity or community determine the goals of positive
performance. It then requires the establishment of a set of indicators to measure
70 E. Meidinger, ‗Multi-Interest Self-Governance through Global Product Certification
Programs‘, in O. Dilling, M. Herberg and G. Winter (eds.), Responsible Business? Self-
Governance in Transnational Economic Transactions (Hart, Oxford, 2008) pp. 259–291.
71 M. Conroy, Branded: How the Certification Revolution is Transforming Global
Corporations (New Society, New York, 2007).
72 H. Schepel, The Constitution of Private Governance: Product Standards in the
Regulation of Integrating Markets (Hart Publishing, Oxford, 2005).
73 The following description draws from Melish, supra note 5.
5-8-2011] ‘New Governance’ Lessons for the Ruggie Framework 19
whether progress is or is not being made toward those performance goals. By
determining a baseline and establishing a set of benchmarks or targets to indicate
the level of performance expected by a given time, performance monitoring
provides a mechanism by which distinct social actors can assess other social
actors‘ relative success in making improvements in performance measures, such as
the enjoyment of human rights for particular affected communities.74
In this regard, information transparency and disclosure is essential. It
provides the basis for a wide range of interested actors to call attention to
unjustified backtracking with respect to priority goals or policies, arbitrary or
discriminatory impacts, or insufficient progress in achieving locally agreed
benchmarks or other performance goals. It likewise encourages the timely
identification and assessment of such problems as they arise, facilitating social
input as to their causes and the generation of community-based ideas for how
distinct policies may be reconstructed or redirected to better serve human rights
ends. Under this approach, less priority may be given to standardised policy uptake
or to the precise means chosen to achieve any particular socially-sanctioned end,
than to the progress (or lack thereof) that is in fact being made on core human
rights indicators, particularly for the most vulnerable.
Under new governance arrangements, performance monitoring should
accordingly be undertaken both by the organisation carrying out a given policy and
external organisations of affected stakeholders or other interested monitors.
Internal monitoring is central to the family of ‗management systems‘ techniques
that have been widely adopted by both governmental and non-governmental
organisations over the past two decades. Exemplified and propagated by the ISO
9000 series of management standards, the management systems approach requires
an organisation to define the impacts in which it is interested, develop mechanisms
for consistently monitoring them – including making specific officers responsible
for doing so – and look regularly for shortcomings and ways of making
improvements.75 The rapid uptake of management systems techniques worldwide
appears to be driven both by the belief that organisations using them are more
profitable and successful than their competitors and by tendencies toward
organisational isomorphism, in which organisations are drawn to imitate the
practices of their most prominent or successful peers. It also seems to be generally
assumed that when an organisation adopts a new routine based on incentives, that
routine is likely eventually to become a taken-for-granted part of its operations,
thus moving from a logic of consequences to a logic of appropriateness.
The management systems approach fits well with the PRR stress on
corporate due diligence as a way of institutionalising human rights protections. It
essentially provides a systematic approach to routinising that process. As we have
74 An exemplary organisation committed to such community-based performance
monitoring is the Participation and Practice of Rights (PPR) Project, a new accountability
initiative operating in Northern Belfast and North Inner City Dublin. See
<www.pprproject.org>.
75 E.g. M. Potoski and A. Prakash, ‗Information Asymmetries as Trade Barriers: ISO
9000 Increases International Commerce‘, 28:2 Journal of Policy Analysis and Management
(2009) pp. 221–238.
20 Respect, Protect, Remedy and Participate [5-8-2011
suggested, however, by itself this will often be inadequate to achieve satisfactory
human rights protections, for several reasons. First, internal management systems
work best when organisations have material incentives to make them successful,76
which will often not be the case for human rights if there are not sustained external
pressures to perform well. Second, in other arenas even where appropriate internal
incentives are present, organisational management systems are often
complemented by external monitoring or certification systems. The external
systems serve several important functions. Most obvious is to verify for interested
constituencies that the organisation being reviewed is actually performing as it
claims.
At the same time, it is important that an external check be available to verify
that the measures being used to evaluate performance in fact correspond to
community or social priorities or goals.77 Where they do not, external monitoring
processes are essential for bringing attention to the inappropriateness of the
indicators chosen and for publicising the results of independent monitoring under
the more appropriate performance measures. Through shaming, negative publicity
or other ways of incentivising material interests, they may correspondingly bring
pressure on an entity to change its measures and hence to improve its own internal
process. Indeed, experience has shown that when governments and corporate
actors are left to select and define their own indicators, those measurements often
do not coincide with the real concerns and priorities of the local populations. The
process thus runs the risk of measuring the wrong things – i.e., raw service
delivery targets or narrow outcome indicators that tell a partial, even skewed story
of what is in fact happening on the ground.78 For this reason, it is critical that local
communities and other stakeholders have a role in defining the broader goals of
performance systems, as well as the particular indicators or measures used to
evaluate performance toward those goals.
Less obvious, but extremely important, is that external monitoring and
certification organisations can serve as essential communications and learning
mechanisms. They are able to transfer information about best practices and
emergent problems among business enterprises, and also to hold public discussions
and deliberations about the best ways to achieve governance goals. Most
importantly, they can serve as fora for deliberating what practices are appropriate
for a given locale and type of industry. Although government agencies could in
76 C. Coglianese and J. Nash, Regulating from the Inside: Can Environmental
Management Systems Achieve Policy Goals? (Resources For the Future, Washington, D.C.,
2001); N. Gunningham and P. Grabosky, Smart Regulation: Designing Environmental
Policy (Clarendon, Oxford, 1998) p. 247.
77 D. O‘Rourke, ‗Multi-stakeholder Regulation: Privatizing or Socializing Global
Labor Standards?‘, 34:5 World Development (2006) pp. 800–918; C. Rodriguez-Garavito,
‗Global Governance and Labor Rights: Codes of Conduct and Anti-Sweatshop Struggles in
Global Apparel Factories in Mexico and Guatemala‘, 33:2 Politics & Society (2005) pp.
203–333.
78 A. Rosga and M. Satterthwaite, ‗The Trust in Indicators: Measuring Human Rights‘,
27:2 Berkeley Journal of International Law (2009) pp. 253–315; Melish, supra note 5, pp.
43–46, 94–99.
5-8-2011] ‘New Governance’ Lessons for the Ruggie Framework 21
principle perform these deliberative functions, in practice they rarely do. Instead,
these functions have become highly dispersed among transnational, national and
local actors. The PRR framework does not propose a method for linking such
discussions in a way that will help business enterprises know or achieve
appropriate levels of protection in variable and changing circumstances.
Other participation-enhancing, process-oriented tactics used by large
numbers of CSOs in new governance regimes include the organised use of civil
society ‗report cards‘, ‗testing‘ processes, shadow reports, social auditing and
certification schemes and the development of alternative budgets.79 While many of
these auditing and certification processes have initially been developed in the
environmental arena, they are increasingly being used in the labour, education,
health and other fields of new governance. This is done in a concerted effort to
engage ordinary people in directly monitoring the quality and impacts of a range of
public services by both public and private actors. By explicitly identifying areas of
satisfactory and unsatisfactory service delivery, competitively rating providers, and
then assessing ‗grades‘, rankings or minimum standards for social certification,
CSOs create new and socially-driven accountability frameworks that can impel
direct rights-based improvements in public service delivery and access.80
In so doing, they aim to ensure that best and worst performers are publicly
and transparently named, that processes exist through which consumers are
provided valuable information about which businesses comply or fail to comply
with minimum standards of human rights protections, and – most importantly –
that all such information is widely and transparently accessible to the broad range
of citizens and consumers that are in a position to act on it in making choices about
how to spend their money, support political candidates, pursue their interests and
otherwise organise their day-to-day lives.81
Two other kinds of new governance procedures are particularly relevant to
human rights protection. Both often involve competition. The first is exemplified
in the European Union‘s ‗Open Method of Coordination‘ (OMC). In this method
of governance the EU establishes short, medium and long-term policy goals
together with a broad set of quantitative and qualitative indicators for them.
Individual countries translate the goals into context-appropriate national and
regional policies, which are subject to regular monitoring, evaluation and peer
review. National experiences are compared, peer reviewed and debated, and, over
time, national policies are adjusted to reflect those discussions and the experiences
79 Melish, supra note 5, p. 89.
80 See e.g. R. Jenkins and A. M. Goetz, ‗Accounts and Accountability: Theoretical
Implications of the Right-to-Information Movement in India‘, 20 Third World Quarterly
(1999) pp. 603, 608 (discussing use of ‗report card‘ method in which public opinion
surveys are conducted in low income neighbourhoods to report on the perceived quality
and appropriateness of a range of public services, using the results as social leverage for
improving service delivery performance).
81 Melish, supra note 5, pp. 105–106.
22 Respect, Protect, Remedy and Participate [5-8-2011
of other countries.82 The OMC thus eschews strict regulatory requirements in
favour of broad goals and seeks to establish an iterative process of mutual learning
based on monitoring and comparison of national reform experiments adapted to
local circumstances.83
The OMC, however, requires a relatively powerful central authority to set
goals and assess monitoring and reporting, conditions generally not met in global
human rights governance. Although the international human rights field has
moderately authoritative international actors that have articulated many broad
principles of human rights over time, they lack the regulatory authority of the EU.
The human rights field thus resembles many other areas of global governance,
although it may be blessed with an unusually rich set of governing principles and
rules. Like many other fields, human rights has multiple, sometimes competing
authorities engaged in converting those principles and standards into binding
localised rules and enforcement mechanisms. The most obvious are nation states,
but they are continually assisted, supplemented and challenged by non-
governmental organisations that are also engaged in the articulation and
enforcement of rules. Like similar bodies in many other fields (e.g., forestry,
fisheries and mining) these non-governmental organisations typically have
relatively elaborate procedures for defining standards, adjudicating (‗certifying‘)
compliance, and taking action against noncompliance – the latter often through
public campaigns.84 Many of these processes parallel those developed by the ISO
and used by other organisations, particularly those in the ISEAL Alliance.85 Multi-
stakeholder standard setting, publication of standards, rules and procedures, public
comment on policy determinations, third party certification proceedings, peer
review and so on are the guiding norms, although some organisations adhere to
them more closely than others.
A critical additional point is that these organisations compete with each other
and even with states for adherents, policy influence and public legitimacy. They
desire that their systems of standards and enforcement will be more widely
respected and adopted than others and thus have decisive influence on the field.
This process is particularly evident in the field of international labour standards,
where a number of significant transnational non-governmental organisations,
82 D. Trubek and L. Trubek, ‗Hard and Soft Law in the Construction of Social Eur ope:
the Role of the Open Method of Coordination,‘ 11 European Law Journal (2005) pp. 343–
364.
83 B. Eberlein and D. Kerwer, ‗New Governance in the European Union: A Theoretical
Perspective‘, 42 J. Com. Mkt. Stud. (2004) pp. 121–142, at p. 123; C. Sabel and J. Zeitlin,
‗Learning from Difference: The New Architecture of Experimentalist Governance in the
European Union‘, 14:3 European Law Journal (2008) pp. 271–327.
84 E.g. E. Meidinger, ‗The Administrative Law of Global Private-Public Regulation:
the Case of Forestry‘, 17 European Journal of International Law (2006) pp. 47–87.
85 The ISEAL Alliance is a global association of non-governmental standard setting
and certification organisations that seeks to provide and promote guidance for best
practices in standard setting. Originally founded by eight organisations, including the FSC,
FLO and IFOAM, its membership is slowly growing and currently includes 11 full
members and 8 associate members. See <www.isealalliance.org/>.
5-8-2011] ‘New Governance’ Lessons for the Ruggie Framework 23
including the Fair Labor Association (FLA), Social Accountability International
(SAI), Ethical Trading Initiative (ETI), Workers Rights Consortium (WRC),
Worldwide Responsible Apparel Production Program (WRAP), and Business
Social Compliance Initiative (BSCI) currently compete to define and certify proper
labour practices.86 While they share many attributes and all rely heavily on the
body of labour standards associated with the UN-based International Labour
Organization (ILO), these organisations differ considerably in their requirements
and methods of enforcement. At present, however, there appear to be few
institutionalised mechanisms for judging or reconciling their competition.
C. Human Rights Governance Ensembles and the Need for Orchestration
A third basic tenet of new governance is legal orchestration. Legal
orchestration, it is said, is what separates the new governance model from flat
processes of devolution and deregulation.87 That is, following the subsidiarity
principle, it functions to prevent the isolation or abandonment of decentralised
initiatives, ensuring that they are linked together within a supportive ‗higher‘
framework. Through that framework, the plurality of proliferating norm-generating
practices that emerge in the market and civil society can be gathered, coordinated,
sorted and made available for observation, allowing different actors to learn from
other experiences, replicate success stories, scale-up where appropriate, and hence
to engage in constant innovation and improvement.
Orchestration is particularly important in the human rights field. Indeed,
human rights governance is carried out by many types of organisations and
networks engaged in complex relationships and processes that the PRR framework
neither directly accounts for nor utilises. At bottom, organisations such as FLA,
SAI, WRC and others exist because the system of states and corporations on which
the PRR framework relies has not translated the body of international human rights
laws into effective protections for workers in developing countries. Consequently,
these non-governmental organisations have sought to impose their own standard
setting and enforcement processes to persuade international customers to buy only
products produced under acceptable conditions. Moreover, many other types of
organisations are engaged in monitoring of human rights practices and advocacy of
human rights regulations.88
Overall, then, the system of human rights governance involves more types of
actors whose activities are more interdependent than the PRR framework would
suggest. Human rights rulemaking, adjudication and enforcement are carried out in
many processes beyond state law making and corporate due diligence analyses. If
86 Fransen, supra note 27. (The ETI does not certify firms, but instead focuses on
setting standards that firms can use in self-certification.) For a general discussion of
legitimacy competition, see J. Black, ‗Constructing and Contesting Legitimacy and
Accountability in Polycentric Regulatory Regimes‘, 2 Regulation and Governance (2008)
pp. 137–164.
87 Lobel, supra note 58, p. 400.
88 P. Nelson and E. Dorsey, ‗New Rights Advocacy in a Global Public Domain‘, 13
European Journal of International Relations (2007) pp. 187–216.
24 Respect, Protect, Remedy and Participate [5-8-2011
one were to visualise the human rights governance system in any given locale one
would see a complex mix of local, national, regional and international state and
non-state agencies engaged in overlapping and intertwined rule making,
adjudication, monitoring and enforcement activities. Similar configurations in
other fields have been termed regimes,89 regime complexes,90 ecosystems,91 and
ensembles.92 Each term is helpful, but ‗ensembles‘ may be the most instructive for
this analysis. It conveys the presence of multiple performers whose roles are
interrelated and should be coordinated and harmonised, but who also have an
inherent degree of autonomy. These players currently lack both a detailed score
and an effective conductor. Because of the variable and changing conditions of
their performance, a detailed score is not plausible. Nor, given the current state of
the PRR framework, has a conductor been created. At present we have many
necessary players groping toward an effective governance system, but limited
understanding of how to orchestrate them. The implicit constructivist hope that
orchestration might emerge from continuing efforts to give content to human rights
norms by states and corporations has not adequately contended with the need to
incorporate civil society organisations in the many facets of human rights
governance, nor with how to adequately orchestrate that process.
There can be little doubt under present circumstances that the involvement of
actors beyond states and corporations is desirable, and even necessary, given the
limited resources and complex motivations of states and corporations. However,
this is not to say that the system is functioning optimally. At present there is
considerable fragmentation and conflict regarding what the human rights duties of
corporations are. FLA and WRAP, for example, promote significantly different
standards for corporate behaviour and implement them in different ways. Efforts to
harmonise the standards and practices of these civil society organisations have
often been difficult and contentious, leading commentators sometimes to declare
failure.93 Progress seems to be continuing, however, with all of the labour
standards organisations recently having agreed to minimum and living wage
requirements, and generally tending to ‗harmonise up‘.94 While this process
89 Abbott and Snidal, supra note 58.
90 K. Raustiala and D. G. Victor ‗The Regime Complex for Plant Genetic Resources‘,
58:2 International Organization (2004) pp. 277–309.
91 Meidinger, supra note 58. This term reflects the tendency for programmes to find
niches in which they seem to have comparative advantages and to cooperate and compete
with each other depending on their relative advantages. It was developed to characterise
food governance in particular.
92 Perez uses this term to describe environmental governance structures around
sustainability indexes. O. Perez, ‗Private Environmental Governance as Ensemble
Regulation: A Critical Exploration of Sustainability Indexes and the New Ensemble
Politics‘, Theoretical Inquiries in Law (forthcoming 2011).
93 Fransen, supra note 27.
94 D. Doorey, ‗Contestation, Authorizations, Collaboration in Labour Code Initiatives:
The Case of the Living Wage‘, Draft Paper for the Workshop on Transnational Business
Governance Interactions, Florence, Italy, May 2011. It should be noted that while the living
wage has been accepted in principle by the certifying organisations, it still seems quite far
from being achieved in practice.
5-8-2011] ‘New Governance’ Lessons for the Ruggie Framework 25
appears similar to the better documented ‗ratcheting up‘ in forestry standards,95 it
is not clear that this is happening in the broader field of human rights standards,
where efforts often remain localised and isolated. Accordingly, both the
contributions of individual programs and the functioning of the larger system seem
likely to remain suboptimal and to require greater attention than they have thus far
received.
In sum, although civil society organisations make valuable and necessary
contributions to an otherwise incomplete system for human rights protection, there
is a pressing need for mechanisms to orchestrate and harmonise their activities, and
to integrate the lessons they have learned into the larger process of human rights
governance. A critical complement to the PRR framework, therefore, will be to
produce studies and recommendations regarding how to learn from and flexibly
orchestrate the activities of the full set of actors in the system, ensuring that their
insights can be used to promote responsive adaptation, fit and scale in all localised
human rights implementation efforts.
IV. OPERATIONALIZING THE BUSINESS AND HUMAN RIGHTS FRAMEWORK:
THE UTILITY OF UPDATING THE SCHEMA
We recognise that Ruggie does not entirely ignore the critical role of civil
society actors or broader learning and sharing processes. His attention to these
actors and processes has, however, largely been limited to the second phase of his
mandate, under which he was tasked by the Human Rights Council specifically
with offering concrete guidance to states, businesses and other social actors on
how to ‗operationalise‘ the PRR framework.96 His 2007 Mapping report to the
Human Rights Council on the PRR framework described selected multi-
stakeholder initiatives, public-private hybrids that combine mandatory with
voluntary measures, and examples of industry and company self-regulation.97
Likewise, his 2008 report concluded that the intent behind the PRR framework is
to help expand the number and scale of initiatives, promote cross-learning, and
help cohere individual measures/initiatives into a more systemic response with
cumulative effects.98 Nonetheless, his PRR framework fails to create a conceptual
or policy basis for how these initiatives may either be promoted by appropriate
actors or orchestrated to in fact promote cross-learning, scaling up and competitive
races to the top.
We believe this failure is a significant design flaw, one carrying major
conceptual and operational costs for the effectiveness of the project. An
operationally more effective framework, we believe, would have incorporated a
fourth pillar, one designed to recognise and affirm the central role played by civil
society actors and affected stakeholders in human rights governance and
95 C. Overdevest, ‗Comparing Forest Certification Schemes: the Case of Ratcheting
Standards in the Forest Sector‘, 8:1 Socio-Econ, Rev. (2010) pp. 47–76.
96 UN Doc. A/HRC/RES/8/7.
97 UN Doc. A/HRC/4/035.
98 UN Doc. A/HRC/8/5, paras. 105–106
26 Respect, Protect, Remedy and Participate [5-8-2011
accountability processes. Under the heading ‗Participate‘, that pillar – or final ‗P‘
– would have complemented the ‗Protect, Respect, Remedy‘ framework by
legitimating and spotlighting one of the key mechanisms through which human
rights harms in the business context are contextually identified and defined and,
critically, by which states and businesses are held to their international duties and
responsibilities in practice. A ‗PRRP‘ framework would correspondingly have
recognised the equal instrumental importance of civil society actors to states and
businesses in protecting against human rights harms in the business sector. Such
recognition is critical, we believe, for ensuring that such actors have the social
leveraging tools and international legitimation necessary for effective independent
monitoring and accountability processes.
In proposing this fourth pillar, we recognise that a global framework of the
PRR sort requires a certain presentational simplicity. Such presentational
simplicity will, in turn, necessarily veil many important details the framework
intends to encompass, both conceptually and operationally. In this regard, it is
important to underscore that we do not take issue here with Ruggie‘s choice to
focus his framework on the state duty to ‗protect‘, the corporate duty to ‗respect‘
and the overlapping duty to ‗remedy‘ claimed breaches of said duties. We
understand and appreciate the utility of this conceptual framework from both a
legal and operational perspective, including for the important acculturation-based
processes it promotes. In particular, unlike some other critics, we are convinced
that the framework neither limits the legal duties held by states outside the
‗business and human rights‘ context nor restrains the corporate duty to ‗respect‘ to
its ‗negative‘ orientation. Accordingly, we believe the formal articulation of the
PRR duties in an international framework that has received broad stakeholder
endorsement is a useful and important contribution to advocacy and progress in the
business and human rights field.
Where we do take issue, and where we believe a new governance approach
provides key insight, is with respect to Ruggie‘s choice to focus his framework on
the duties and responsibilities of only states and corporate entities and, specifically,
to do so in a way that suggests that states and businesses are the central actors in
human rights compliance regimes. Missing is the critical role and key
responsibilities of civil society actors in global governance, particularly in
defining, monitoring, evaluating, participating in, assessing and (re)constructing
the operational elements of state and business duties in the business and human
rights context. Without the incorporation of these critical actors – and a
corresponding emphasis on independent civil society accountability processes as a
complement to state-based remediation and voluntary enforcement efforts – we do
not believe it is possible to close the ‗governance gaps‘ that Ruggie identifies as
the root cause of the business and human rights conundrum.
Indeed, Ruggie specifically acknowledges the basis of these governance
gaps in the lack of sufficient accountability incentives faced by states and
businesses today. He thus recognises that state authorities are not able to
effectively regulate corporate conduct in light of the political and economic
incentives they currently face in the globalised economy. At the same time,
businesses are not able to effectively regulate themselves. As the SRSG affirms,
5-8-2011] ‘New Governance’ Lessons for the Ruggie Framework 27
‗[t]he Achilles heel of self-regulatory arrangements to date is their undeveloped
accountability mechanisms‖.99 It remains unclear, then, how simply better
articulating the normative duties or responsibilities of these actors in pillars 1, 2
and 3 – duties the respective actors already understood themselves to hold under
international human rights law – will change the incentive structures they face or
improve their internal accountability systems. Some type of independent and
external monitoring and accountability is essential, it would seem, to disrupt and
reshape the material incentives facing states and businesses in their day-to-day
conduct as it affects human rights. That is, additional actors, with distinct ways of
leveraging power over corporate and state conduct, must be explicitly brought into
the framework for it to be effective in closing the current governance gaps. The
‗participate‘ pillar would have addressed this critical concern by supplementing
Ruggie‘s current emphasis on promoting a ‗logic of appropriateness‘ from above
with a corresponding ‗logic of consequences‘ from below.
The inclusion of a fourth pillar would likewise have served to respond to the
central critique lodged by scholarly commentators against acculturation-based
models of regime design: that acculturative models promote only shallow and
superficial reforms by targeted actors and hence should never form the basis for
regime design.100 Indeed, the problem of institutional isomorphism (manifested in
high numbers of treaty ratifications and other formal human rights commitments)
accompanied by deep and widespread patterns of ‗decoupling‘ between those
commitments and actual undertakings has long been a major problem in the human
rights field. It has led commentators to insist that the problem with human rights
law is not that it is insufficiently acculturative, but rather that it is under-
enforced.101 On this view, greater emphasis needs to be placed on new and
innovative mechanisms of enforcement for human rights law – on how to hold
state and business actors to account, socially, legally and politically (through a
variety of incentive-based mechanisms), for policies and practices that threaten
human rights harm.
Authoritative recognition of a fourth ‗participation‘ pillar would have helped
to address this central human rights concern by more accurately representing the
complex social dynamic of interaction between interested actors that is necessary
for institutional transformation to in fact take place within corporate culture and
state practice. Specifically, it would have served to provide civil society actors
with a critical set of leverage tools for asserting their voice and socially amplifying
their power through a broad combination of persuasion, coercion and
acculturation-based strategies to help close gaps between formal commitments and
actual undertakings. As previously underscored, this range of strategies far exceeds
those covered under a narrow ‗remedy‘ prong.102 A ‗PRRP‘ framework would
99 J.G. Ruggie, ‗Business and Human Rights: The Evolving International Agenda‘, 101
American Journal of International Law (2007) p. 836.
100 Goodman and Jinks, supra note 22, p. 725 (noting critique).
101 Ibid.
102 They likewise include active engagement in the conduct of human rights impact
assessments, independent performance monitoring of businesses and states under locally-
defined human rights indicators, the assessment of corporate and state policies, the
28 Respect, Protect, Remedy and Participate [5-8-2011
correspondingly reflect the growing understanding that while acculturation-based
models must be a ―part of the larger conversation‖, by themselves they are ―not the
ideal or preferable social mechanism around which to design international human
rights regimes‖, a fact acknowledged even by sociological institutionalism‘s most
dedicated defenders.103
The insights of both new governance and economic institutionalism are thus
as critical to institutional transformation in the business and human rights context
as is Ruggie‘s more idealist emphasis on the social embedding of norms. These
approaches emphasise the necessity of ensuring social accountability systems that
can effectively and sustainably leverage interests by embedding a logic of
consequences within institutional structures. Hence, even if one would expect a
rule-based logic of appropriateness to at some point become so embedded in
corporate conduct as to supplant a logic of consequences as the effective driver of
policy action, it is difficult to expect such embedding to occur in the absence of
active processes of leverage and interest-based organising on the part of distinct
social actors, especially those in civil society most directly impacted by state and
corporate conduct. Express attention to these actors, processes and mechanics is
thus essential to any effective accountability or governance regime.
* * *
In proposing a fourth ‗participate‘ pillar we do anticipate counterarguments.
This is especially so given the amount of time and resources already invested in
the PRR framework and hence the resistance that will likely follow the prospect of
updating it so soon. Specifically, we foresee four principle counterarguments: two
question its necessity, two its advisability.
A. The Necessity of a Fourth ‗Participate‘ Pillar
First, we anticipate that many framework supporters will defend the current
structure by arguing that a ‗participate‘ pillar is simply not necessary. Two
arguments can be expected in this regard. First, civil society participation is
already suggested in the Guiding Principles and hence need not be incorporated in
the framework itself. Second, civil society will organize and participate regardless
of what the framework looks like. We believe that neither argument is persuasive.
Indeed, both take insufficient account of the very real power asymmetries that
characterise human rights struggles, asymmetries that function in practice to
substantially inhibit, limit or even preclude community-based civil society
engagement in monitoring and accountability processes. By contrast, formal
recognition in an authoritative international policy design of the right of
stakeholders to participate in human rights governance and accountability
processes would provide a critical set of legal resources and leveraging tools to
publicising of setbacks, lack of progress, or abusive policies, and the active gathering and
sharing of information related to all aspects of corporate-related human rights abuse,
among many others.
103 Goodman and Jinks, supra note 22, note 10.
5-8-2011] ‘New Governance’ Lessons for the Ruggie Framework 29
affected communities – both for mobilizing less powerful actors to engage systems
of abuse and for legitimating their participation vis-à-vis more powerful actors.
The instrumental importance of such recognition cannot be underestimated.
Although the guiding principles do call for transparency and participation in the
conduct of corporate due diligence responsibilities, such participation is not
required under the framework; nor can it be asserted by civil society groups as a
‗right‘ conferred under the framework. Under the current conceptual framework, a
business can legitimately claim that it need not allow for civil society participation
in external monitoring of any of the aforementioned due diligence activities. This
apparent corporate right of control over who has access to relevant information for
human rights monitoring and impact assessment and who can speak on behalf of
communities in voluntary consultation processes is a major operational gap in the
Ruggie framework. Indeed, corporate actors are unlikely, at least in the short-term,
to see external monitoring of their operations on the human rights of affected
communities as consistent with their economic interest. As has been noted with
respect to private governance organisations in the garment industries, the degree of
control over implementation and compliance procedures is a major source of
division. Those initiatives, such as WRAP and BSCI, that are predominantly
business-controlled, favour compliance systems in which the division of tasks
between social and business actors is heavily weighted toward business actors.
They thus select auditors themselves, preferring professional auditing firms; do not
allow audited information to be released to the public; and insist that complaints
and grievances be dealt with internally by firm representatives.104
Businesses that adopt policies such as these may be in formal compliance
with the PRR framework, while in fact impeding real change in their corporate
approach to respecting human rights. In this sense, by not incorporating a
‗participate‘ pillar, the PRR framework may unwittingly contribute to a system in
which corporate human rights policies are allowed to be used strategically by
businesses to signal compliance to the market (thereby enhancing reputational
interests), while simultaneously impeding production of and access to the
information necessary for ensuring that the corresponding social reputation
markets are functioning properly. If this were the case, the PRR framework could
serve in practice to weaken, rather than enhance, corporate social accountability
processes. The kind of mutual competition and monitoring by external actors that
we have argued for would of course help to resolve these problems.
A fourth ‗participate‘ pillar would play a critical legitimation role in this
regard by validating civil society requests to access information from business
entities about their policies, guidelines, impact assessments and performance
tracking systems, while promoting greater business reliance on external,
independent and community-based monitoring and assessment systems. It would
correspondingly allow civil society actors to use the framework proactively, as an
104 Fransen, supra note 27. It should be noted that we are not arguing that it is never
appropriate for firms to choose their own auditors in social accountability systems, only
that the practice has serious risks unless counterbalanced by other accountability
mechanisms.
30 Respect, Protect, Remedy and Participate [5-8-2011
operational sword, to demand active spaces for their participation where it is
otherwise denied.
In addition to its legitimating role, the inclusion of a ‗participate‘ prong
would also serve an essential mobilising function. It is important to recall in this
regard that human rights law is designed specifically to protect and enhance the
participatory agency of individuals to stand up and defend their own rights when
threatened by external actors, whether public or private.105 The international
human rights architecture has correspondingly made protecting and promoting the
right to participatory inclusion by individuals and groups in decision-making
processes that affect their lives an increasing priority in its work.106 A ‗participate‘
pillar would assist civil society actors in organising themselves and mobilising
internal resources to demand active engagement in increasingly creative and novel
ways. By focusing on corporate and state actors only, the current PRR framework
does not provide this critical resource to other community actors, as a human
rights-based approach would require.
It has been suggested that Ruggie intended the ‗remedy‘ prong of the PRR
framework to serve this role. Yet, the SRSG‘s discussion of state and corporate
duties to remedy is focused almost exclusively on the provision of grievance
procedures for ‗victims‘ of human rights abuse. Although he refers to the
importance of both judicial and non-judicial mechanisms, both types of
mechanisms are directed toward ex-post redress for harms that have occurred in
the corporate context. Community members are conceived principally as ‗objects‘
of potential abuse, not as ‗subjects‘ of decision-making processes and impact
assessments concerning activities that may affect their lives. The ‗remedy‘ prong is
thus insufficient for addressing the distinct issues that arise from the right and
responsibility of citizens to ‗participate‘ in system accountability processes.
An effective regime for compliance with human rights norms must
correspondingly focus much more explicitly on mechanisms of community
participation and assessment that take effect before significant harm occurs. Such
mobilisation of participation, as an internationally-recognised right of civil society
actors, would likewise serve to counteract what has come to be known as the
‗participation industry,‘ often called the fastest growing sector of the governance
business. It would thus provide a framework of mobilisation to communities in
ensuring against token company exercises of ‗stakeholder participation‘ that rely
exclusively on limited ‗consultations‘ or ‗focus groups‘ with affected
communities, the inclusion of a ‗representative‘ of marginalised affected groups on
advisory boards, or the creation of self-help groups or users‘ associations under
105See e.g. M. Ignatieff, ‗Human Rights as Politics‘, in A. Gutman (ed.), Human Rights
as Politics and Idolatry (Princeton University Press, Princeton, 2001) p. 4; P. Alston,
‗International Law and the Human Right to Food‘ in P. Alston and K. Tomasevski (eds.),
The Right to Food (Martinus Nijhoff, Leiden, 1984) p. 62.
106 See e.g. UN ECOSOC, Comm. On Econ., Soc. & Cultural Rights, General
Comment No. 14, The Right to the Highest Attainable Standard of Health, para. 54, 22nd
Sess., UN Doc. E/C.12/2000.4 (2000).
5-8-2011] ‘New Governance’ Lessons for the Ruggie Framework 31
program guidelines.107 Rather, it would provide the tools for insisting on the
creation of new mechanisms through which affected communities may
independently monitor the performance of decision-makers, not by invitation, but
by their own power to identify minimum standards of appropriate community
conduct (consistent with human rights values) and to exert social sanction where
performance does not meet those standards.108
A second major counter-argument to the addition of a ‗participate‘ pillar is
that civil society will organise and participate regardless of the framework‘s
precise elements. Defenders of acculturation-based international law regimes often
highlight this argument, stressing that, by creating a global script that can be called
upon in mobilisation campaigns, acculturative processes may indirectly promote
opportunities for the emergence of domestic-level social movements.109 While we
do not disagree, we believe the argument only reinforces the importance of civil
society mobilisation and participatory engagement for ensuring systemic
transformation. It underscores – not diminishes – the utility of a fourth pillar to
strengthen and promote this essential social dynamic in the business and human
rights context.
In addressing this concern, we emphasise that we do not presume that
Ruggie fails to appreciate the importance of civil society actors and processes. We
believe that he assumes and expects them to operate. Nonetheless, consistent with
his broader theoretical commitments, he understands them as ancillary to, or
definitionally subsumed within, the larger process of norm acculturation or
socialisation that he seeks to promote within the operations of states and global
business entities. Our concern is that, by failing to recognise such actors and
processes expressly, Ruggie undermines their very ability to mobilise and operate
as legitimate actors within his framework. Accordingly, we believe that any regime
design that fails to take such essential social actors into specific operational
account is incomplete and deficient.
B. The Advisability of a Fourth ‗Participate‘ Pillar
A second set of likely counterarguments to a fourth pillar arises from a
desire to avoid the political divisiveness caused by business opposition to the Draft
Norms. These arguments focus not on the utility of a ‗participate‘ pillar, but rather
on its advisability. On this view, any added instrumental utility to a PRRP
framework should be sacrificed in favour of strong business sector buy-in and
engagement with a more limited PRR framework.
107 See e.g. The World Bank Group, The World Bank Participation Sourcebook (1996)
pp. 145–146. While these kinds of participatory mechanisms can sometimes also spur
increased community participation (M. Tysiachniouk and E. Meidinger, ‗Importing
Democracy: Promoting Participatory Decision Making in Russian Forest Communities,‘
in C. Claeys and M. Jacqué, Environmental Democracy: Facing Uncertainty (Peter Lang
Publishers, London and Brussels, 2011), they are often used to dampen and control
community participatory processes.
108 Melish, supra note 5, p. 92.
109 Goodman and Jinks, supra note 22, pp. 733–743.
32 Respect, Protect, Remedy and Participate [5-8-2011
Whether the business community would in fact oppose framework
recognition of the role of civil society in human rights governance is nonetheless
an empirical question. Interestingly, it is one that has not appeared to bear itself out
in practice. According to inner members of the Ruggie team, a repeated question
posed to the SRSG by business sector representatives in the SRSG‘s extensive
global stakeholder consultations was why states and businesses were the only
social actors addressed under the PRR framework.110 They wondered why the
roles and responsibilities of civil society were not likewise addressed. It does not
appear, then, that the business community was broadly, or even marginally,
opposed to explicit references in the framework to civil society rights and
responsibilities. They may in fact have highly welcomed them.111 We do not, then,
believe that ‗anticipated business opposition‘ is a persuasive argument for avoiding
a fourth pillar.
A second potential, but equally unpersuasive, argument is that the addition
of a ‗participate‘ pillar would exceed the SRSG‘s mandate by recognising a right
or duty that extends beyond current international law principles. Claims of such
doctrinal excess were indeed a major motivation for broad business opposition to
the Draft Norms. Whether or not such excess in fact characterised the Norms, it
does not characterise our proposed fourth pillar. The right of civil society to
participate in decision-making processes that impact their lives has consistently
been recognised by international treaty bodies and tribunals. UN human rights
treaty bodies, for example, expressly recognise the right to participatory inclusion
by affected individuals and groups as ―an integral component of any policy,
programme or strategy development to discharge governmental [human rights]
obligations …‖.112 The effective enjoyment of human rights, such expert bodies
insist, can only be secured if the ―right to participate in public decision-making‖ is
ensured to all groups in society.113
This important principle has likewise been recognised by the regional human
rights tribunals. In the specific context of business and indigenous rights, regional
tribunals have, for example, repeatedly recognised that states may not move
110 R. Davis, ‘Ethical and Practical Challenges for Corporate Lawyers Advising Clients
on Human Rights‘, 105 Proceedings of the Annual Meeting (American Society of
International Law), Harmony & Dissonance in International Law (23–26 March 2011)
(audio transcript).
111 Perhaps ironically, it was the civil society sector participating in the consultations
that was most opposed to taking the emphasis of the framework off of states and
businesses. Ibid.
112 UN ECOSOC, Comm. On Econ., Soc. & Cultural Rights, General Comment No.
14, The Right to the Highest Attainable Standard of Health, para. 54, 22nd Sess., UN Doc.
E/C.12/2000.4 (2000).
113 See e.g. ibid. (―Effective provision of health services can only be assured if
people‘s participation is secured by States‖); UN ECOSOC, Comm. On Econ., Soc. &
Cultural Rights, General Comment No. 4, The Right to Adequate Housing, para. 9, 6th
Sess., UN Doc. E/1992/23 (1991) (―[T]he right to participate in public decision-making—is
indispensable if the right to adequate housing is to be realized and maintained by all groups
in society‖).
5-8-2011] ‘New Governance’ Lessons for the Ruggie Framework 33
forward with plans or concessions to private business regarding development,
investment, exploration or resource extraction on indigenous lands without first
ensuring the right to ‗effective participation‘ of affected communities in the
decision-making process. At the same time, required human rights safeguards
include the obligation to ensure the performance of a prior social and
environmental impact assessment by an independent entity.114 That is, international
human rights tribunals have recognised that impact assessments conducted by
economically interested parties often are not trustworthy indicators of likely
human rights impacts. Attention to who is to conduct human rights impact
assessments, under what conditions, and on the basis of what standards is an area
of critical concern in the human rights context. It remains markedly under-
specified in the Ruggie PRR framework.115
V. CONCLUSION: MOVING FORWARD
In providing the foregoing critique and proposal, new governance lessons
have been particularly influential to our analysis. As discussed, new governance
approaches seek to maximize policy responsiveness and adaptability to agreed
public goals by incorporating new channels for stakeholder participation and new
processes of transparency, accountability, and orchestration. These channels and
processes are seen as necessary for both ensuring the legitimacy and operational
effectiveness of public and private programs and for ensuring that ‗compliance‘ or
‗implementation gaps‘ are identified and closed as needed. At the same time, they
do not seek mimicry or orthodoxy in forms, but rather encourage experimentation
and competition for results in line with local diversity, priorities, and experience.
Correspondingly, new governance approaches provide important insight into
how an international human rights regime might be designed to both respect
contextual diversity in the global community and to close the ‗governance gaps‘
that the SRSG himself has identified as the root cause of the global business and
human rights conundrum. Such approaches are in this regard consistent with
Ruggie‘s social constructivist perspective, even while extending beyond it to
expressly incorporate more instrumentalist elements. Indeed, by focusing not only
on norms, but also on the political process dynamics that create and recreate them,
Ruggie‘s theoretical approach has always emphasized the importance of actors
114 See e.g. Saramaka People v. Suriname, Judgment of 28 November 2007, Inter-Am.
Ct. (Ser. C), para. 129; Center for Minority Rights Development (Kenya) and Minority
Rights Group International on behalf of the Endorois Welfare Council v. Kenya,
Communication 276/2003, Afr. Comm‘n on Hum. & Peoples‘ Rts (2010).
115 In recognizing the foundational basis of our proposal in mainstream international
law principles and jurisprudence, we underscore that we do not and would not characterise
our proposal as ‗radical‘, as do Parker and Howe with respect to their similar participatory
proposal in this volume. While our proposal does necessarily address issues of power and
interest conflict, such questions are fundamentally what human rights are about and hence
should not, in our view, be understood as representing anything outside of mainstream
acceptance.
34 Respect, Protect, Remedy and Participate [5-8-2011
engaging in that ‗active process of interpretation and construction of reality‘.116
That process is not one that involves the deployment of norms alone, however. It
necessarily relies on the strategic leverage of economic and other material interests
by norm entrepreneurs as a means of instantiating new normative understandings
or priorities in social actor conduct. As we have suggested, the construction of
relevant human rights norms in any particular context cannot legitimately or
effectively occur without the direct and active participation of those whose human
rights are at stake. Hence, the need to both ensure and promote the direct
participation of those and other supporting actors in corporate social accountability
processes.
To help fill this critical gap in the PRR framework, this chapter has proposed
an important fourth pillar—civil society participation—upon which processes of
this sort could have been advanced through the SRSG‘s mandate. Developing and
institutionalizing these ideas, including those related to effective orchestration of
the lessons and informational outputs produced by the proliferation of such
participatory processes, will be a necessary next step in creating an effective
human rights governance system. We urge the new Working Group on business
and human rights, established by the Human Rights Council to succeed the
SRSG,117 to take up expressly in this regard what Ruggie left insufficiently
acknowledged and conceptually underdeveloped.
116 Ruggie, ‗What Makes the World Hang Together?‘, supra note 14.
117 UN Doc. A/HRC/RES/17/4 (2011) (establishing a ‗Working Group on the issue of
human rights and transnational corporations and other business enterprises, consisting of
five independent experts‘, to continue the SRSG‘s work by promoting the dissemination
and implementation of the Guiding Principles and assessing them on the basis of
information received from all relevant sources).
