Larry Catá Backer, Are Supply Chains Transnational Legal Orders? What We Can Learn from the Rana Plaza Factory Building Collapse, UC Irvine Journal of International, Transnational, and Comparative Law 1(1):11-66 (Fall 2016).
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Abstract: In 2013, over a thousand workers were killed when the Rana Plaza factory building collapsed in Bangladesh, one housing several garment factories producing goods for global consumer markets. The collapse, and its consequences, exposed both the complex interweaving of national law, international standards, and private governance standards that together might be understood as a transnational legal order that has some effects on business behavior. This essay engages in a close examination of the Rana Plaza factory building collapse and its aftermath as the starting point for theorizing systemicity in the emerging interlocking systems of national, private and international governance orders. At one level, the governance architectures around the Rana Plaza building collapse suggests bits and pieces of governance and lawmaking that may point to the development of distinct governance orders that bump into each other serendipitously. Yet it is also possible to theorize systemicity from out of these bits, pieces, and bumps that may suggest the nature and forms that are emerging as a distinct class of transnational legal order. Starting from the governance response to the Rana Plaza building collapse facts, this article examines the way that the collective actions of states, international organizations, enterprises, civil society, and affected groups evidence a robust transnational legal order. That transnational order has a normative structure, operationalizes a legal process, and structures a framework within which international organizations, and state and non-state private actors strive toward building functional coherence within formally polycentric governance orders. Alternatively, Rana Plaza might suggest polycentric governance ordering or the new face of old hierarchical relations between developed and developing states. The essay concludes that the reality of the context in which governance arises may continue to defy a single robust theorization. Theories may be chasing facts, but the complexity of the legal ordering reflected in the arc of the story of the Rana Plaza factory building collapse also suggest that facts may soon turn on and reshape theory.
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Larry Catá Backer, Corporate Social Responsibility in Weak Governance Zones, Santa Clara Journal of International Law4(1):297-332 (2016).
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Abstract: This article considers the evolution of governance standards for determining the extent of an enterprise’s responsibilities to protect human rights in weak governance zones. The article briefly describes the development of the standard and then evaluates the standard as it has been developed and framed within the U.N. Guiding Principles for Business and Human Rights and in the Organization for Economic Cooperation and Development’s Guidelines for Multinational Enterprises (OECD Guidelines). Particular attention will be paid to the Risk Awareness Tool for Multinational Enterprises which was developed to complement the OECD Guidelines following the call made by 2005 G8 Summit for the development of OECD guidance. The article suggests the ways that CSR has been transformed, in some respects, to a mandate for assuming governance responsibilities in those states unable or unwilling to institute systems of law that conform to international consensus standards on human rights. It also explores the challenges of the approaches of both efforts. Both acknowledge the autonomy of enterprises as directly responsible for the operationalization of international norms wherever they operate. Yet both also open the door to extraterritorial application of law. The same framework that advances the governance autonomy of enterprises also envisions them as the vehicles through which home states may project national power within host states with weak governance regimes. Or it may be understood as an important vehicle for internationalizing the law of states characterized by weak governance. In this respect the weak governance zone principles parallels, on the private side, the efforts at legal internationalization general to many bilateral investment treaties. And this tension built into both frameworks, a tension that goes to the dual character of enterprises as both autonomous governance actors and as creatures of the states in which they are domiciled, that mark the potential and the challenge to the internationalization of regimes of CSR.
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Larry Catá Backer, The Emerging Normative Structures of Transnational Law: Non-State Enterprises in Polycentric Asymmetric Global Orders, Brigham Young University Journal of Public Law 31(1):1-52 ( 2016).
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Abstract: Globalization has produced a wealth of writing that seeks to theorize the emerging relationships between states, non-state actors (especially multinational corporations), and international organizations. For lawyers, the relationship among these actors through law is especially meaningful. What has been emerging in recent years with greater clarity is that while the formal structures of the organization of law and its relationship to the state system remains substantially unchanged, the realities on the ground have moved substantially away from these formal structures. The traditional premises that have been used to justify and explain the relationships among states, non-state actors, international organizations, law and governance no longer adequately either explain or justify the actual behaviors and outlooks of these actors. This essay considers the tension between the traditional premises of organizing governance (within and through states) and the emerging transnational legal order. The focus of examination is the corporation, which is where this tension is most in evidence. The analysis starts with the ideology of the state order, which disguises alternative governance orders and the governments through which they are operationalized. It is with the effects of the ideology of the state order that the analytical limitations of analysis become clearer, the object of Section II. Sections III and IV explore the power of ideology in framing analysis in the conception of the reality of self-constitutionalizing organization outside the state and in theorizing of transnational law as method. Both suggest the ways in which the ideologies of framing analysis can color both the way in which relationships are understood and the objectives of analysis are formed. Section V then posits an alternative analysis, normatively autonomous (though not entirely free) of the orbit of the state, a vision possible only when the ideological presumptions of the state are suspended.
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Larry Catá Backer, Shaping a Global Law for Business Enterprises: Framing Principles and the Promise of a Comprehensive Treaty on Business and Human Rights, North Carolina Journal of International Law 42(2): 417-504 (2016).
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Since 2014, an open-ended intergovernmental working group (IGWG) on transnational corporations and other business enterprises with respect to human rights, was charged by the U.N. Human Rights Council with the task of elaborating an international legally binding instrument to regulate, in international human rights law, the activities of transnational corporations and other business enterprises. What are the principles that ought to frame the drafting of a treaty? How does one evaluate the effect pf provisions against these fundamental principles and objectives? Lastly, how does one develop a framework for pragmatic compromise that preserves the integrity of the treaty draft without compromising its core principles? These are not just theoretical questions. This article considers the means of approaching these questions and their consequences for the project of elaborating a comprehensive treaty for business and human rights that face treaty drafters. And its principal insight follows from its focus: no comprehensive treaty for business and human rights will retain any coherence or fidelity to its core objectives unless the treaty drafters first identify and choose among the ideologically distinct principles frameworks for going forward and tie the elaboration of specific provisions to these principles. After a short introduction, the contribution first considers the normative principles that might constrain treaty making. To that end it considers both the charge to the intergovernmental working group and the objectives statements of an influential group of NGOs that have been important in driving the process. These suggest the range of ideological choices that must serve as a starting point for treaty drafting that is principled. For that purpose, evolutive and transformative objectives are distinguished and considered in the context of framework, institutional and systemic objectives. The contribution then considers how these principles would need to be expressed in a treaty. Negotiation will tend to focus on three classes of technical provisions, all of which look ideologically adrift, but each of which is embedded with principle and the choices of ideology moving the elaboration project forward: structural provisions, substantive provisions, and process provisions. That consideration then raises a crucial issue—the extent to which the application of principle to treaty writing may produce a challenge to conventional norms and the ideologies of domestic and international law systems that may require pragmatic compromise in treaty drafting. The contribution ends by considering the ways that principled pragmatism may be useful in helping construct a framework for determining an approach to treaty making in the shadow of the UN Guiding Principles themselves.
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Larry Catá Backer, Central Planning Versus Markets Marxism: Their Differences and Consequences for the International Ordering of State, Law, Politics, and Economy, Connecticut Journal of International Law 32(1) :1-47 (2016).
Abstract: Two theories of Marxist state organization have been developing recently, each pointing in quite distinct ways to the organization of society, the state, government and the role of the vanguard Party. The development of an Asian “Markets Marxism” Model is well understood. The recent emergence of a Latin American “Central Planning Marxism” Model is less well understood. This paper examines the characteristics of this emerging “Central Planning Marxism” mode by looking at its development in Cuba since 2011. The examination centers on the official theory produced from the 6th through the 7th Congresses of the Cuban Communist Party (PCC). The 7th PCC Congress stands in stark contrast to its predecessor. A close examination of the development from the 6th to the 7th Congress may suggest the limits of reform in Cuba. These limits are structural as well as ideological. After a short introduction, Part II considers the structural constraints on reform as evidenced in the 7th Congress. process aspects of the 7th PCC Congress. Part III then considers the ideological constraints on reform that were produced in the 7th Congress and its substantive consequences of what now appears to be a sputtering of the reform trajectory from the 6th to the 7th PCC Congress. That exploration revolves around a close reading of the major ideological product of the 7th Congress, its Conceptualización which is intended to complement the Guidelines (Lineamientos) of the 6th PCC Congress, and provide the theoretical foundation for its further implementation of the reforms these Guidelines represented. Part IV then contrasts this emerging Model with the Asian “Markets Marxism” Model. The consequences for political economy, legitimacy and law are also discussed. Differences between the Asian Markets Marxism and the Cuban Central Planning Marxist Models may have profound implications for rule of law development and the structures of regulatory governance in administrative structures. Those differences suggest the difficulty of developing consensus for key concepts in law—from rule of law, to human rights and markets. An understanding of these quite distinct conceptual frameworks of understanding law, economics and politics will be essential as the leaders of these quite conceptually distinct systems seek to interact.
Dos teorías de la organización marxista del estado se desarrollan en los últimos años, cada una apuntando en formas muy distintas a la organización de la sociedad, el estado, el gobierno y el papel del partido de vanguardia. El desarrollo de un modelo asiático “marxismo mercador” se entiende bien. La reciente aparición de un modelo latinoamericano “Central de Planificación marxismo” es menos conocido. Este artículo examina las características de esta modalidad emergente “marxismo planificador” al ver su desarrollo en Cuba desde 2011. Los centros de examen sobre la teoría oficial producido a partir de la 6ª a través de los 7º Congresos del Partido Comunista de Cuba (PCC). El 7º Congreso del PCC está en marcado contraste con su predecesor. Un examen detallado de la evolución del 6 al 7 ° Congreso puede sugerir los límites de la reforma en Cuba. Estos límites son estructurales, así como ideológico. Tras una breve introducción, la segunda parte considera las limitaciones estructurales de la reforma como se evidencia en el 7º Congreso. aspectos del proceso del 7º Congreso del PCC. En la Parte III se consideran las limitaciones ideológicas de la reforma que se produjeron en el 7º Congreso y sus consecuencias sustantivas de lo que ahora parece ser un chisporroteo de la trayectoria de la reforma del 6 al 7 ° Congreso. Esta exploración gira alrededor del producto ideológico más importante del 7º Congreso, su Conceptualización que está destinada a complementar las lineamientos del 6º Congreso del PCC, y proporcionar la base teórica para su ulterior aplicación de las reformas de las presentes directrices representadas. Parte IV contrasta este modelo emergente con el modelo asiático “marxismo mercador”. También se discuten las consecuencias para la economía política, la legitimidad y el derecho. Las diferencias entre la teorías marxista asiático y latinoamericano tendrán profundas implicaciones para el desarrollo del estado de derecho y las estructuras de gobernanza regulatoria en las estructuras administrativas. Estas diferencias sugieren la dificultad de desarrollar un consenso para los conceptos clave en el proceso legislativo del estado de derecho, los derechos humanos y de los mercados. La comprensión de estos marcos conceptuales muy distintas de entender el derecho, la economía y la política será esencial, ya que los líderes de estos sistemas bastante conceptualmente distintas buscan interactuar.
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