Global Governance. Impact of the United Nations Organization

Inhaltsverzeichnis

1. Introduction
1.1. Introduction to the essay
1.2. Introduction to the UN Guiding Principles on Business and Human Rights
1.3. Definition of central concepts: Regime & Regime Complex

2. Why have the Global Compact & the UN Guiding Principles been successful?
2.1. Dimensions of Regime Effectiveness
2.2 Analysis & Evaluation of the Global Compact & the UN Guiding Principles
2.2.1. Analyse of the Global Compact & the UN Guiding Principles
2.2.2. Final Evaluation of the Global Compact & the UN Guiding Principles

3. How might the Global Governance of human rights and MNE might be improved?

4. Conclusion

Reference list

1. Introduction

1.1. Introduction to the essay

As a result of globalisation, Multinational Enterprises (MNEs) have become increasingly powerful and important. This concentration of power goes hand in hand with some negative effects such as avoidance of taxation, quasi-monopolies or issues like the non-observance of environmental, labour protection and human rights standards.

Since the attempt to achieve a legally binding regulation of MNEs failed in 1992, the number of voluntary self-regulation initiatives increased. In these initiatives, MNEs are not passive addressees but active partners already during the development of these initiatives (Coni-Zimmer and Flohr, 2013, p. 37). The number of these initiatives has now become very unmanageable, which is accompanied by a fragmentation of standards.

This essay focuses on two central initiatives, the United Nations (UN): The Global Compact (GC) and the UN Guiding Principles for Business and Human Rights (UNGPs). Since the UN is traditionally the international framework in which human rights have been established (Seppala, 2009, p. 402), these two initiatives were selected. It is a continuation of the briefing paper that I wrote during the Global Governance seminar. It analyses the effects of MNEs on a macroeconomic and corporate social responsibility level and describes the GC and its advantages and disadvantages in more detail. Therefore, this essay will not take up these points again In contrast to the Briefing Paper, which looked at the problems caused by MNEs from a broader perspective, the present essay focuses on the UN regulations on the observance of human rights by MNEs. It would have gone beyond the scope of this paper to consider all the effects of MNEs.

Since the UNGPs were not presented in detail in the briefing paper, an overview of them and an explanation of central concepts is given first. The second chapter of the essay then analyses the reasons for the success of the GC and the UNGPs. In the third chapter, the Global Experiment Governance is presented as a possible proposal for improving the human rights protection regime.

1.2. Introduction to the UN Guiding Principles on Business and Human Rights

After previous attempts to establish a framework for the protection of human rights by MNE at international level had failed, the UN created the office of the Special Representative of the Secretary-General for Human Rights (UNSPHR) in 2005. The UNGPS are a cross-sectoral approach that was adopted by the UN Human Rights Council in 2011. They are not international law and are therefore not legally binding (UNHR Office of the High Comissoner, 2014, p. 8). It is preceded by extensive research and consultation procedures by the UN Special UNSPHR, John Ruggie. The framework he has created consists of three pillars:

1.) Protect: The Principles emphasise the duty of states to protect people in their rights, including rights vis-à-vis companies. On the other hand, they also address themselves directly to companies and require them to respect and protect human rights as part of their due diligence. Furthermore, the UN Human Rights Council calls upon states to draw up national action plans to implement the principles.
2.) Respect: States, companies and enterprises are encouraged to create structures for complaints in a legal and non-legal way.
3.) Remedy: In order to effectively enforce human rights violations, companies and states are encouraged to establish state and non-state complaints procedures. (UNHR Office of the High Comissoner, 2011)Coni-Zimmer and Flohr 2013, p. 39; Hadwiger et al. 2017, pp. 11–12).

Beside the UNGPs the Human Rights Council established the ‘Working Group’ among other things. They have the following tasks: advancing the process of implementing the UNGPs, conducting state visits and, as coordinator, seeking dialogue with relevant actors and many more (UNHR Office of the High Comissoner, 2020b).

The UNGPs are a mixture of international and private regulation. For the first time, the principles clearly define the different responsibilities: Accordingly, states are responsible for creating the framework conditions for the protection of human rights and the prosecution of violations (Seppala, 2009, p. 410). Nevertheless, companies also have a responsibility: they too are called upon to respect human rights regardless of the obligations of states. Both actors have a responsibility to respect human rights(Hadwiger et al., 2017, pp. 51–61; UNHR Office of the High Comissoner, 2011, pp. 3–26).

Nine years after the launch of the UNGPs, 23 states have developed a national action plan, 22 have started to develop or at least declared their intention to develop a plan. In eight states, the Network of African National Human Rights Institutions (NANHRI) or the civil society pushes the development of a national action plan Human Rights and Business (UNHR Office of the High Comissoner, 2020a).

1.3. Definition of central concepts: Regime & Regime Complex

International regimes are institutionalized arrangements for solving problems that simultaneously affect the interests of several states or even those of non-state actors. One of the most prominent definitions of regimes is that of Krasner (1983) in which he defines , as „sets of implicit or explicit principles, norms, rules, and decision-making procedures around which actors’ expectations converge in a given area of international relations. Principles are beliefs of fact, causation, und rectitude. Norms are standards of behavior defined in terms of rights and obligations. Rules are specific prescriptions or proscriptions for actions. Decisionmaking procedures are prevailing practices for making and implementing collective choice” (Krasner, 1983, p. 2).

Over the years, various regulations have been established to protect human rights by different bodies with different sponsors. These variety can be described as a regime complex. Due to the definition of Raustiala and Victor, a regime complex is “an array of partially overlapping and nonhierarchical institutions governing a particular issue-area” (Raustiala and Victor, 2004, p. 279) which include public and privat regimes (Alter and Raustiala, 2018, p. 332). “Regime complexity refers to international political systems of global governance that emerge because of the coexistence of rule density and regime complexes” (Alter and Raustiala, 2018, p. 333). Between the different institutions is no hierarchy. Therefore, it is not necessary that a consensus does not necessarily have to be reached on critical issues. (Alter and Raustiala, 2018, p. 333).

Regime complexity can be found especially in multidimensional problems that cannot be solved by a simple regime (Alter and Raustiala, 2018, p. 330).

In contrast to regime complex, simple regimes are characterized by the fact that the regime building process also begins with an institutional new beginning. If earlier agreements exist, they are discarded or integrated into the new regime. One example is the GATT, which has been replaced by the WTO. In a regime complex, the norms of a new regime are aligned and harmonised with those of the existing regimes around it. (Raustiala and Victor, 2004, p. 297).

2. Why have the Global Compact & the UN Guiding Principles been successful?

According to the definition of the Cambridge Dictionary ‘success’ describes (1) “achieving the results wanted or hope for” or is (2) “something that achieve positive results” (Cambridge Dictionary, 2020). The following section will examine this in detail in relation to the GC and the UNGPs.

Taking the definition of 'success' apart, it consists of two partial definitions: With regard to human rights, "achieving the results wanted or hope for" would be compliance with human rights by MNEs, the state and other actors (ibid). Looking at the second part of the definition, success in relation to the GC and UNGPs means both ensuring positive results. The second partial definition in particular is closely linked to the question of effectiveness. However, the complex construct of effectiveness cannot be measured precisely all in once and therefore has to be broken down into individual variables (Breitmeier, 2016, p. 906).

The following subchapter will first introduce into the different dimensions how effectiveness can be seen. After it, I will introduce the assessment criteria of Keohane and Victor, which evaluate a complex regime out of a normative view. Following this, they are applied to the GC and the UNGPs.

2.1. Dimensions of Regime Effectiveness

Although international institutions and regimes have existed as long as politics itself, regime formation was initially a central subject of regime research (Sprinz, 2003, p. 258). It was only in the 1990s that regime research began to examine the question of how effective regimes are. There was no doubt at the time that regimes were successful. However, this does not say anything about the extent to which a regime itself contributes a causal contribution to solve a problem, achieve a goal or change behaviour (Breitmeier, 2016, p. 905; Sprinz, 2003, pp. 258–259).

To assess the effectiveness of the regimes, various standards and criteria have been used in the literature. This is certainly also since the concept of effectiveness is a difficult one to grasp and can be viewed from different points of view (Young and Levy, 1999, p. 3). They introduce the following dimensions: effectiveness can be viewed from the dimension of the problem-solving-, legal-, economic-, normative- and political approach (Breitmeier, 2016, p. 906; Sprinz, 2003, p. 259; Young and Levy, 1999, pp. 2–6). The problem-solving approach quantifies effectiveness by the contribution that the regime has made to solve the problem (Ward, 2006, p. 154; Young and Levy, 1999, p. 4). The legal approach focuses on the implementation of the contractual agreements by the members while the economic one focus on the effectiveness of these implementations. The normative one takes things like fairness, justice, stewardship and participation into account (Young and Levy, 1999, pp. 4–5). Similar to the legal approach is finally the political approach, which looks on effectiveness through the lens “changing of behaviour, interests of actors and policies and performance of institution […]” (Young and Levy, 1999, p. 5).

The individual dimensions of effectiveness are causally linked. For instance, if a regime is perceived as unfair by one actor (normative dimension), that actor will pay little attention to this regime. Consequently, compliance (legal and political dimension) suffers as a result and thus jeopardises the achievement of a regime's objectives (Breitmeier, 2016, p. 906). Therefore, the question of how effective a regime is closely linked to the question of success since effectiveness has a decisive influence on success.

Keohane and Victor (2011) proposed the following assessment criteria to evaluate the regime complexes, which can assume characteristics between dysfunctional and functional. The more dimensions they take on a functional character, the more justifiable the regime complexes are (Keohane and Victor, 2011, p. 16). The dimensions are:

1.) Coherence – The regimes in a regime complex can be compatible with each other and thus reinforce each other or be incompatible. “A regime whose components are compatible and mutually reinforcing is coherent” (ibid).
2.) Accountability – means 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” (Grant and Keohane, 2005, p. 29). Especially states, non-governmental organization and public should have the ability to account (Keohane and Victor, 2011, p. 17).
3.) Determinacy – This refers to determinacy of the rules. Determinate rules helps to create clarity and provide a higher compliance because actors know what to do.
4.) Sustainability – Sustainable regime complex have institutions that reinforce each other and are built in a redundant way (ibid).
5.) Epistemic quality – Epistemic quality then exists where the norms and rules of the regime are based on the current state of science (ibid).
6.) Fairness – A fair regime complex does not discriminate against actors, even if they are not cooperating, and provide benefits widely.

2.2 Analysis & Evaluation of the Global Compact & the UN Guiding Principles

The following section will apply the assessment criteria of Keohane and Victor to the GC and the UNGPs. Since the sub-dimension epistemic quality into the is not so plausible in the area of human rights, the dimension will not be examined further in the analysis below¹. As suggested by Keohane and Victor, the expression of each dimension is rated on a scale from functional to dysfunctional, at the end of the evaluation. For simplicity, the continuum of the dimension is reduced to three states: dysfunctional, neutral, functional.

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¹ Keohane and Victor introduce those normative evaluation dimension in an journal article which deals about the climate change regimes. In this context this dimension is also much more pausible.