Selected published book chapters may be accessed here:
Larry Catá Backer, “Will COVID-19 infect the world order?” in International Thinker’s Views on the Post-Corona Order (Mehdi Azizi, Payman Yazdani, and Javad Heirannia (eds.); Tehran: Mehr News Agency, July 2020) (English version).
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INTRODUCTION: First, it is important to underline that there WILL be effects on the current world order. That is an important premise because it was not at all necessary, nor was it necessarily predictable at the start of the pandemic. Thus, the first step in answering this question is to answer the question on which it must be based: have the influential elements with responsibility for the maintenance of the world order determined that the COVID-19 pandemic MUST produce effects. The answer to that question has become clear by the middle of April 2020—the COVID-19 pandemic must produce effects on a world order that, in retrospect will be understood, at the end of 2019, as a world order ready for change but unable to move by reason of inertia. In effect, then, CVID-19 will have effects on the world order precisely because those with the power to shape the narratives on the basis of which mass society understands and responds to the world have given that signification to the pandemic itself. Was it necessary to invest the pandemic with this change power? –NO! But does that matter anymore?— again NO!
Larry Catá Backer, “The arc of triumph and transformation of the OECD Guidelines,” in OECD Guidelines for Multinational Enterprises: A Glass Half Full (Liber Amicorum for Dr. Roel Nieuwenkamp, Chair of the OECD Working Party on Responsible Business Conduct 2013-2018) pp. 43-50 (Paris: OECD, 2018).
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ABSTRACT: The OECD Guidelines for Multinational Enterprises, long with the U.N. Guiding Principles for Business and Human Rights have played a key role in transforming the governance landscape for enterprises operating across borders. Roel played an instrumental role in this development during its critical formative stages and his handiwork will be felt for a long time to come. This is especially the case with respect to the most challenging aspect of the OECD Guidelines — the determined and clear-headed efforts to develop and offer a means of finding, if not remedy, then at least guidance, through the National Contact Point (NCP) Specific Instance process. If the OECD Guidelines are substantive principles in search of a jurisprudence, then the NCP mechanism ties to a substantive framework and the Specific Instance process promises a means of providing an engaged and legitimating environment in which shared principles can move from abstraction to application. That advance, the reconstitution of the NCP and its Specific Instance process, marks the greatest triumph, its greatest point of transformation, and the most significant unfinished business of the “Revolution of 2011.”
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Larry Catá Backer, “The Cuban Communist Party at the Cusp of Change,” in Reforming Communism: Cuba in a Comparative Perspective (Scott Morgenstern and Jorge Pérez López, eds. University of Pittsburgh Press, forthcoming 2018).
PRE-PUBLICATION VERSION ACCESS HERE: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2711907.
ABSTRACT: The Cuban Communist Party (PCC) stands at the center of economic, political and social change in Cuba. An extraordinarily conservative institution in its doctrinal development, the PCC has had to begin to move beyond the certainties of what appeared to be climax ideology after 2011. That process will accelerate as Cuba seeks to embed itself into global economic, social and political systems. This chapter briefly considers the issues facing the PCC as it seeks to emerge as an autonomous institutional force, free of the control of its creators and the personal power of those revolutionary leaders who conflation of party and personality deeply affected the character and development of the PCC through its first half century. Section II examines the history of the PCC in the context of its current challenges. Section III then considers the application of ideology to political construction of the Party-State apparatus. The heart of the chapter, Section IV, then considers the current state of PCC approaches to the challenges that face the Party-State apparatus if it is to retain its legitimacy and viability in the current stage of development into which Cuba will be thrust in the next decade. It focuses on some of the potential changes that may figure in the years to come. The context are the potentially profound changes to Cuba’s institutional structures and approaches to economic regulation t be considered in the 7th PCC Congress. The chapter suggests that the movement toward reform since the 6th PCC Congress suggests that Cuban elites may be willing to undertake the same approach to reform and opening up as their Eastern European and Soviet predecessors — a reluctance to move away from central planning as the core of economic policy and a willingness to engage in political reform that do not disturb the effective control of the PCC, but which also carry a substantial risk of revolutionary potential.
Keywords: Communist Party, central planning, economic reform, political reform, rule of law, Cuba
JEL Classification: K39, K49, P26, P39, P51
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Larry Catá Backer, “From Guiding Principles to Interpretive Organizations: Developing a Framework for Applying the UNGPs to Disputes that Institutionalizes the Advocacy Role of Civil Society” (SSRN HERE) in Business and Human Rights: Beyond the End of the Beginning (César Rodríguez-Garavito, ed., Cambridge University Press, 2017).
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Abstract: Global human rights NGOs evidence the power and temptations of the great normative institutional forces that affect the governance projects of transnational society in the early 21st century. These forces — (1) the drive for order and rationality even within emerging polycentric orders beyond the state, and (2) the transformation of the individual within this polycentric universe from singular being to disembodied abstraction made flesh in the body of civil society — are irresistible. The chapter’s thesis is this: the logic of emerging meta-governance points to the need to establish a central mechanism for the interpretation of transnational normative governance instruments and particularly the United Nations Guiding Principles for Business and Human Rights (UNGPs), and the logic of emerging mass governance principles points to the need to vest representative civil society organizations with the authority to bring cases and advocate before such an interpretive body. Movements to develop comprehensive treaty structures pose a threat to the establishment of a workable transnational order compatible with the realities of contemporary governance. This chapter considers both the challenges of the arguments for the institutionalization of NGOs within the normative framework of the UNGPs and the strengths of their critique of the Working Group on human rights and transnational corporations and other business enterprises (WG) for missed opportunities. Two of these opportunities, to date ignored, are worthy of serious development. The first is a facility for delivering interpretations of the GPs whether or not deemed binding by state or enterprise instrumentalities at the international level. The second, drawing from the first, would incorporate civil society as a key representative of individuals seeking an interpretation of the INGPs in particular contexts. It follows that the application-interpretation facility requires not just the establishment not just of an institutional framework for providing a means of hearing specific complaints, but one in which individuals could bring these complaints through representative civil society for determination of the application of the GPs in context. The object is to more fully develop the UNGP’s remedial third pillar through the creation of an internationally based autonomous source of process and governance that raises the stakeholder status of individuals, now represented by a civil society sector under the third pillar that states enjoy under the first pillar and enterprises enjoy under the second. The way to that goal requires substantial development, but its value appears clear.
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Larry Catá Backer, “Pragmatism Without Principle?: How a Comprehensive Treaty on Business and Human Rights Ought to be Framed, Why It Can’t, and the Dangers of the Pragmatic Turn in Treaty Crafting,” in Building a Treaty on Business and Human Rights: Context and Contours 105-130 (Surya Deva and David Bilchitz, eds., Cambridge University Press, 2017). ISBN978-1-107-19911-8 (hrbk).
ACCESS CHAPTER HERE: https://www.cambridge.org/core/books/building-a-treaty-on-business-and-human-rights/principled-pragmatism-in-the-elaboration-of-a-comprehensive-treaty-on-business-and-human-rights/8AD1E7204815AEBB7D1E90111D507BE8.
PRE-PUBLICATION VERSION HERE: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2734399.
ABSTRACT: In June 2014, an “open-ended intergovernmental working group to elaborate an international legally binding instrument to regulate, in international human rights law, the activities of transnational corporations and other business enterprises” (IGWG) was established to overcome a number of purported deficiencies that some states and civil society actors had expressed about the soft law U.N. Guiding Principles for Business and Human Rights framework, endorsed by the Human Rights Council in 2011. Any move from regulatory systems grounded in Guiding Principles to one grounded in Treaty making raises two questions. The first is normative: what are the substantive goals of such a treaty. The second is operational: how should those goals be expressed in an international treaty? Both questions go to the fundamental ordering principles of regulatory construction and way such principles are developed and applied. After a short introduction, the essay first considers the great framework principles that might be extracted from the mandate for treaty elaboration of the IGWG. Those principles provide the objectives and substantive principles around which a comprehensive treaty will be elaborated. The essay then turns to the consideration of two levels of principles that may be used to guide pragmatic choices in treaty elaboration. The first touches on the great framework principles that give the treaty its structure and coherence within the objectives of the mandate. These suggest the range of ideological choices that must serve as a starting point for treaty drafting that is principled. Pragmatism follows from the need to choose among these framing principles or work through ways of blending them that avoid incoherence of the treaty as a whole. The second touches on issues of application of framing principle in the actual drafting of treaty provisions. Distinct framing principles privilege or emphasize distinct sets of provisions. Coordinating principle and provision — or moderating that connection suggests the scope of pragmatism that most take for granted (as the routine “wheeling and dealing” of negotiation, but which are guided by the usually unstated normative frameworks the purpose of which is to ensure coherence and fidelity to the basic ideological foundation of the draft.
Keywords: multinational enterprises, transnational corporations, business and human rights, treaty, UN Guiding Principles, CSR
JEL Classification: F02, K10, K22, K33, M14, P45
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Larry Catá Backer, “Considering a Treaty on Corporations and Human Rights: Mostly Failures But With a Glimmer of Success,” in The Future of Business and Human Rights: Theoretical and Practical Considerations for a UN Treaty (Nicolás Carillo-Santarelli and Jernej Letnar Cernic, eds., Intersentia, forthcoming 2017).
PRE-PUBLICATION VERSION MAY BE ACCESSED HERE: 9781780684918_The Future of Business and Human Rights, 04.
ABSTRACT: In June 2014, three years after it endorsed the U. N. Guiding Principles on Business and Human Rights, the UN Human Rights Council moved to establish an open-ended intergovernmental working group to elaborate an international legally binding instrument to regulate, in international human rights law, the activities of transnational corporations and other business enterprises. These actions brought into the open long festering tensions among stakeholders involved in developing governance frameworks to manage the human rights behaviors of enterprises. The substantive positions of most stakeholders are now quite clear. They appear perhaps irreconcilable. This chapter will consider what the process of negotiating the contemplated treaty may reveal about the state of structuring governance frameworks for business and human rights either within the anticipated treaty framework or under the UNGPs. What analysis may reveal is that while the move toward the negotiation of a treaty may reveal substantial normative and conceptual failures, it also suggests some not inconsiderable successes. After setting the context of the current debate, Part II considers the normative and structural difficulties of the move toward a comprehensive business and human rights treaty. Part III then considers its benefits, both for the process of developing structures of governance for business and human rights, and its substance. Taken together what may become clear is that even were the move toward a treaty to end in failure, the movement toward more robust governance of the human rights effects of economic activity will emerge stronger.
Keywords: business and human rights, human rights treaty, multinational corporations, Guiding Principles, Civil Society
JEL Classification: F23, K33, M14, P41
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Larry Catá Backer, “The Evolving Relationship Between TNCs and Political Actors and Governments,” in Research Handbook on Transnational Corporations 82-116 (Alice de Jonge and Roman Tomasic, eds., Edward Elgar Publishing, 2017). ISBN: 978 1 78347 690 9.
ACCESS CHAPTER HERE: https://www.elgaronline.com/view/9781783476909.00011.xml.
PRE-PUBLICATION VERSION HERE: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2726351.
ABSTRACT: This contribution considers the nature of the relationships among TNCs, political actors and government, as a set of emerging ecologies of political economy. Each represents a distinct response to the transformation of the global legal, economic and political order in the face of globalization. Each exists autonomously and is evolving simultaneously, yet each is significantly interconnected within a polycentric governance order that lends overall structure without a centering position. The chapter starts with the conventional and traditional ecology of relationships, centered on the state. It then considers the three most distinctive forms of emerging relational ecologies emerging that de-center the state. The first is based on the TNC as the centering element of production chain order. The second is grounded on the emergence of non-state governance centers which assert order through certification, verification, and monitoring. The third posits the emergence of a multi-stakeholder autonomous and self referencing system around production chains. The chapter briefly considers whether there is something like meta theory structuring this disaggregated and scattered by intermeshed systems that have arisen around the state. The examination ends with a brief suggestion of what may lie ahead.
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Larry Catá Backer, “The Concept of Constitutionalization and the Multi-Corporate Enterprise in the 21st Century: From Body Corporate to Sovereign Enterprise,” in Multinationals and the Constitutionalization of the World Power System 170-189 (Jean-Philippe Robé, Antoine Lyon-Caen, and Stéphane Vernac, eds., Routledge (Taylor & Francis Group), 2016) ISBN: 978-1-4724-8292-1 (hbk); ISBN: 978-1-315-596334 (ebk).
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PRE-PUBLICATION VERSION ACCESS HERE: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2458965.
ABSTRACT: This chapter considers the conception of constitutionalization as a structure for theorizing a space within which constitutionalized entities may interact in accordance with the ideological principles of legitimizing constitutionalism. Constitutions have been the means through which states have expressed their organization and ruling ideologies. Constitutionalism provides the normative ideology for expressing the core rules and values that determine the legitimacy of variations in constitutional embodiment. Once associated with the construction of political “persons” the normative structures in constitutionalism have opened the possibility of using its frameworks for the embodiment of any organized group that wants to govern itself. It provides the structure for incarnating an institutional entity that is “ensouled” in the sense that it is separate and autonomous from its creators, though operated through them. In globalization all self governing groups interact beyond the territorial borders of states. That interaction requires a common platform for intermeshing among quite different classes of constitutional entities. Constitutionalization is the way one understands the science of that search for a common communicative platform among self governing groups related by their interactions. But it also suggests an obligation to constitutionalize along its terms — there is an aspect of ministry in constitutionalism that is manifested through its works — what it offers constitutional actors and their constituent members that is deemed “good” as a guide to behavior. Thus the paper considers the concept of constitutionalism as incarnation (constitutional formation), “ensoulment” (constitutionalism and values) and community and ministry (constitutionalization). It is the form of constitutions that now serve as the basis for institutional formation. It is the normative structures of constitutionalism that provides the “soul” of those institutional forms, that serve as the basis of their autonomy from their creators and operators and that guide them between right and wrong. And it is constitutionalization that serves as the foundation for a common language of interaction among an increasingly diverse set of constitutional creatures. The paper thus ends with a brief view toward application — what does all this theory mean for the way states and enterprises ought to act, that is ought to perform their constitutional roles in the world in which they occupy substantial positions of power over individuals, who now appear dwarfed by these institutional giants.
JEL Classification: K22, K33, M14, P51, Z10
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Larry Catá Backer, “If You Want to Change Societal Norms You have to Change Society: Michael Olivas and ‘Constitutional Criteria’ in Managing Higher Education Admissions Decisions,” in Law Professor and Accidental Historian: The Scholarship of Michael A. Olivas pp. 201-2016 (Ediberto Roman, ed., Carolina Academic Press, 2017). ISBN: 978-1-61163-686-4.
ACCESS CHAPTER HERE: https://cap-press.com/books/isbn/9781611636864/Law-Professor-and-Accidental-Historian#.
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ABSTRACT: Professor Olivas may well have sensed, in many respects well before many of his academic colleagues, that in order to change legal superstructures one must first expose and change the societal sub-structures; that is only changes in social perception, in the sense of what is acceptable open the possibilities of changes the legal superstructures and their interpretive possibilities. Nowhere is this premise more acutely situated than within the structures of education in the United States. Arranged, like society, into tiers and classes reflecting social, economic and cultural status, educational institutions, especially post-secondary institutions, serve as gatekeepers to position and power to speak for and to societal actors—to effectively shape societal views of the “conventional” and “acceptable” in all spheres of national activity. To transform law, one must first transform societal space; to transform societal space, one must expand the boundaries of who is included in society; to expand the boundaries of inclusion one must open access to the university. It is in this context that I consider Professor Olivas’ reflections on one of the most interesting cases of access to the university, Regents of the Univ. of California v. Bakke, 438 U.S. 265 (1978) and what it has to say for both the legal and societal structures of U.S. legal culture. Those reflections are worth careful study in the context of the ongoing societal and legal-constitutional conflicts that remain unresolved in this Republic. I start with Professor Olivas’ consideration of the structures of admission. I then draw some enduring insights from that exploration. The legal construction of admission then suggests the critical role it plays in societal transformation. It is not enough for law to represent societal norms. Where society includes some but not all elements of a polity, both law and the incentives to interpret foundational (constitutional) norms tend to reinforce the society it reflects. Opening societal structures provides the basis for transforming societal norms (including law and the framework of constitutional interpretation) to reflect the societal space thus transformed.
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Larry Catá Backer, “Governance Polycentrism or Regulated Self-Regulation—Rule Systems for Human Rights Impacts of Economic Activity Where National, Private and International Regimes Collide,” (SSRN HERE) in Contested Collisions: Interdisciplinary Inquiries into Norm Fragmentation in World Society 198-225 (Kerstin Blome, Hannah Franzki, Andreas Fischer-Lescano, Nora Markard and Stefan Oeter, eds., Cambridge University Press, 2016). ISBN 978-1-107-12657-2.
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Abstract: The development of governance regimes for the human rights impacts of economic activity has been at the center of the evolution of governance where multiple legal and non-legal systems simultaneously apply. The contribution considers the extent to which it is possible to order the many layers of governance (law, soft law, normative standards, individual practices, contractual arrangements, custom, etc.) that together constitute the emerging “law” of human rights impacts of business activity. This layering and simultaneous application of rules (polycentricity) is likely to produce conflict or contraction (rule regime collisions) that must be mediated. Failures of mediation can impede the operation of the system to produce a coherent management of behaviors. Conventional law produced and enforced through the mechanisms available to conventionally constituted states do not serve this transnational project well. Conventional law tends to be static and substantially bound by the territory form which it emerges and in which it applies with the greatest force. The contribution thus poses the question: how is it possible to produce regulatory coherence in a system which lacks an ordering center but operates through multiple regulatory systems simultaneously? Part I considers the structures and premises of the emerging governance framework built into the United Nations Guiding Principles for Business and Human Rights (UNGP), and the three pillar framework from which it arose (state duty to protect, corporate responsibility to respect, and effective remedies for adverse effects of human rights), as it has been incorporated into the Organization for Economic Cooperation and Development Guidelines for Multinational Enterprises. Part II then challenges the formal logic of the theory polycentric anarchy with a consideration of the functional effects of implementation. Governance in action may not so much produce spaces for managed polycentric collision as it links politically posited law and private governance in what could be called an externally regulated self-regulation. In particular, Gunther Teubner’s notion of self-constitutionalizing regimes founded not on polycentricity as order without a center, but rather as the construct of a network of linkages that produces both self constitution and dependent autonomy. The linkages that tie the governance systems of states, enterprises and international bodies in the regulation of the human rights effects of economic activity, then, have substance. These linkages do not produce order formally, but they do have the functional effect of ordering relations among autonomous actors based on the effects of their communicative interventions. It is in the understanding of the character of those linkages, as anarchic sites for mediation of collision or as the form of new multi-systemic hierarchies of regulation, that one can see emerge the nature of “law” in the 21st century.
Keywords: human rights, multinational corporations, transnational corporations, Guiding Principles, OECD Guidelines for Multinationals
JEL Classification: D74, K22, M14
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Larry Catá Backer and Nabih Haddad, “Philanthropy and the Character of the Public Research University—The Intersections of Private Giving, Institutional Autonomy, and Shared Governance,” in Facilitating Higher Education Growth through Fundraising and Philanthropy 28-58 (H. C. Alphin Jr., J. Lavine, S. E. Stark & A.Hocke, eds., Hershey, PA: IGI Global, 2016) (with Nabih Haddad) ISBN13: 9781466696648.
ACCESS CHAPTER HERE: https://www.igi-global.com/chapter/philanthropy-and-the-character-of-the-public-research-university/141822.
ACCESS PRE-PUBLICATION VERSION HERE: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2625389.
ABSTRACT: Educational scholars have examined the relationship of philanthropy and its contributions to the public university. Yet, there has been little discussion of the influence of philanthropy on the governance space of the public research university, and specifically as conditional philanthropy may affect academic integrity and shared governance. In this chapter, we consider these larger issues in the context of a study of a recent case. Drawing on public records, interviews, and university documents, the chapter examines conditional donation of The Charles G. Koch Foundation (CKF) to the Florida State University (FSU). We suggest that the Koch Foundation gift appears to illustrate a new model of governance based philanthropy. It has done so by tying donations to control or influence of the internal governing mechanics of an academic unit of a public university. This model has generated controversy. Though there was substantial faculty and student backlash, the model appears to be evidence of a new philanthropic relationship between the public university and substantial donors, one in which donors may change the nature of traditional shared governance relationships within the university. We maintain that instances of such “new” strategic philanthropy require greater focus on and sensitivity to shared governance and faculty input as a way to ensure accountability, especially to preserve the integrity of the academic enterprise and its public mission where donors seek to leverage philanthropy into choices relating to faculty hires, courses and programs traditionally at the center of faculty prerogatives in shared governance.
Keywords: philanthropy, university, shared governance, charities, education finance
JEL Classification: I22, K39
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Larry Catá Backer, “Regulating Global Markets: What we Might Learn From Sovereign Wealth Funds,” in Reshaping Markets: Economic Governance, The Global Financial Crisis, and Liberal Utopia pp. 229-254 (Bertram Lomfield, Alessandro Somma and Peer Zumbansen, eds., Cambridge University Press, 2016). ISBN-13: 978-1107095908.
ACCESS CHAPTER HERE: http://www.cambridge.org/gb/academic/subjects/law/corporate-law/reshaping-markets-economic-governance-global-financial-crisis-and-liberal-utopia?format=HB#vpLV3ZKfXVYBFQxj.97.
PRE-PUBLICATION VERSION HERE: BACKERSWFGlobalMkts5-2015
ABSTRACT: Markets have begun to emerge as the locus of regulatory activity, serving a role once reserved for national legislatures, and providing an alternative to multinational governance through the mechanics of public international law. Under the logic of economic globalization, any state may project its power beyond its borders, including its legal and policy regimes, through investment activity undertaken in private markets. This chapter considers the way in which states are contributing to a fundamental re-orientation of the relationship between state, market, one in which the market for corporate securities begins to substitute for legislature or public international governance mechanisms. The chapter posits that this re-orientation is most acutely apparent in the form of state activity in the form of sovereign wealth funds (SWFs). SWFs have been transformed from mere objects of public domestic and international regulation to sources of governance in their own right effected through private financial markets. The model of this transformation is the Norwegian sovereign wealth fund (NSWF). Part II provides the context and framework within which it is possible to theorize public governance within private financial markets, one grounded in the principles of globalization amalgamated with the strategic use of corporate governance principles. Part III examines the legal and regulatory framework within which the NSWF is organized and operated to produce a conscious program of regulatory objectives in private financial decision-making through “responsible investing” and “active ownership” principles. Part IV analyzes the ways in which these principles of responsible investing and active ownership have been used to fashion complex cooperative regulatory regimes that coordinate public, private and international norms through state interventions in private investment markets, and their fragility in light of regulatory changes operational from 2015.
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Larry Catá Backer, “China’s Corporate Social Responsibility With National Characteristics: Coherence and Dissonance With the Global Business and Human Rights Project,” in Human Rights and Business: Moving Forward, Looking Back 530-558 (Jena Martin and Karen Erica Bravo, eds., Cambridge University Press, 2015)). ISBN 9781107095526
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PRE-PUBLICATION VERSION HERE: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2448030.
ABSTRACT: This chapter shows how the social and institutional organization and political culture of China have affected how Chinese corporations approach the issue of corporate social responsibility (CSR) in general and CSR-based human rights responsibilities in particular. Part I examines the global context in which Chinese CSR is framed. Part II analyzes the Chinese political context in which CSR operates and the socio-political culture that shapes CSR choices. Notions of socialist modernization, economic development, and the importance of building social, economic and political structures with Chinese characteristics largely shape Chinese policy, drive Chinese administrative institutions, and shape the context in which Chinese enterprises approach CSR issues. Like Chinese state policy, Chinese CSR focuses on issues of economic development and prosperity rather than civil and political rights. Part III considers the effects of these substantive choices on the implementation of CSR in China. In China, the obligations of both state and enterprise are understood in terms of institutional duty to people rather than in terms of individual rights that may be asserted against institutions. That understanding shapes both the approaches to remediation and the relationship between the state and enterprise in regard to CSR compliance. The connection between (1) substance (tied to socialist modernization) and operationalization (tied to the premise that the protection of the liberties of individuals is a state obligation) and (2) the state, the Communist Party and business enterprises, frames the “Chinese Characteristics” of CSR. Only by recognizing this close connection between state policy and corporate responsibility can one understand how CSR is implemented in China and successfully translate global human rights discourse into the Chinese context.
Keywords: CSR china, state owned enterprisesd, business and human rights, UN Guiding Principles, SASAC
JEL Classification: K22, M14, P26, P31, P33
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Larry Catá Backer, Keren Wang, Nabih Haddad and Tomonori Teraoka, “Democratizing the Global Business and Human Rights Project by Catalyzing Strategic Litigation From the Bottom Up,” in Human Rights and Business: Moving Forward, Looking Back 254-287 (Jena Martin and Karen Erica Bravo, eds., Cambridge University Press, 2015)) ISBN 9781107095526.
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PRE-PUBLICATION VERSION HERE: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2325994.
ABSTRACT: With the June 2011 endorsement of the U.N. Guiding Principles for Business and Human Rights (GP) by the U.N. Human Rights Council, the international community entered a new phase in the approach to the important work of developing global norms for economic activity with human rights impacts, irrespective of the states in which these occur. But the business and human rights project still privileges the state and the elite communities of enterprises, lawyers, and civil society organizations that form the networks of norm creation and operationalization on which the objects of human rights discourse are dependent. To effectively implement the GP requires an empowerment of all stakeholders down the supply and value chain. This empowerment must naturalize the substantive norms embedded in the GP into the cultures of business activity shared by all stakeholders. This chapter, then, elaborates our initial framework for a three-phase approach for the Democratizing Human Rights/Catalyzing Strategic Litigation (DHR/CSL) initiative, which employs an updated knowledge management strategy that begins with knowledge production centered on focused toolkits, followed by the education/knowledge transmission phase that involves deployment of knowledge product, such as toolkits, through student-centered training, education, and technical assistance; finally, the project will move towards the operationalization phase where large networks of stakeholders can both effectively and sustainably enforce business due diligence through the implementation of litigation/complaint strategies. The combination of knowledge creation, education/technical assistance, and targeted litigation/complaint strategies may serve to overcome the problem of evolving the current development of business and human rights project from a bauble for the use of global elites and as an instrumental project to protect the privilege of states to a mechanism of asserting popular power through the operation of markets and the invocation of the international procedures which states themselves are bound to honor.
Keywords: business due diligence, corporate social responsibility, education, human rights, international law, knowledge management, knowledge spiral cluster, nonprofit organizations, OECD, strategic litigation, Guiding Principles Business and Human Rights, Guidelines for Multinational Enterprises, NGO
JEL Classification: D63, D8, F53, I2, J8, K33, K41, L17, L3, M14
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Larry Catá Backer, “The Role of Companies in Privatizing Socio-Economic Rights in India and China Under Emerging Global Regulatory Frameworks,” in Socio-Economic Rights in Emerging Free Markets: Comparative Insights from India and China 44-70 (Surya Deva, ed., London: Routledge, 2015). ISBN 978-0-415-735070.
ACCESS CHAPTER HERE: https://www.routledge.com/Socio-Economic-Rights-in-Emerging-Free-Markets-Comparative-Insights-from/Deva/p/book/9780415735070.
PRE-PUBLICATION VERSION HERE: PRE_PUBL_REV_Backer
ABSTRACT: Privatisation and its effects on the implementation of socio-economic rights protection regimes, then, serve as the focus of this chapter. This focus can be usefully divided into two essentially inter-related questions. The first is institutional in nature: to what extent can advances in the protection of economic and social rights be understood as driven by the private rather than by the public institutions in China and India? The second touches on process and substance: what accounts for the differences in the expression and vindication of economic and social rights between China and India? I will first set the context, focusing on the ways in which social and economic rights are understood within India and China, and the ways in which the structural relationships between civil, political, economic and social rights affect the form and character of implementation. In the next section then, I will suggest the role of globalisation and privatisation of human rights obligations through two case studies, one form India and the other from China. These also evidence the way in which the tensions between the North and the South, and the prioritisation of political and economic rights, play out quite differently within the private sector incorporation of these norms in China and India. I will conclude with some general observations about globalisation, privatisation and the advancement of human rights regimes.
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Larry Catá Backer, “SWFs in Five Continents and Three Narratives: Similarities and Differences,” in Research Handbook on Sovereign Wealth Funds and International Investment Law 57-98 (Fabio Bassan, ed., Cheltenham, Eng.: Edward Elgar, 2015). ISBN 978-78195-519-2.
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ABSTRACT: Organized and targeted state interventions in private markets, especially with respect to investments beyond their own territories, have raised complex issues. Particularly when undertaken in the form of Sovereign Wealth Funds (SWFs,) these public activities in private markets raised issues with respect to the viability of the private market-based foundations of globalization. How one understands the nature, and character, and therefore the boundaries of legitimate organization and operation of SWFs remains an under-theorized though highly politicized endeavor. More important, perhaps, was the political objective in what might have appeared to be a more anarchic and polycentric global ordering – the development and control of a master narrative, of a transcendent and universal truth, of SWFs. This chapter examines SWF characteristics in different areas and regions. The chapter postulates regionalization grounded in three distinct narrative foundations for SWF regionalism – an economic purpose narrative, a legalist narrative, and a corporatist narrative. The first currently serves as the ‘master narrative’ of SWFs, the lens through which SWFs are understood and around which analysis (especially social science and political analysis) and theory tend to be structured. The other two are alternative narratives that sometimes layer and sometimes seek to displace the master economics narrative. Each produces its own approach to SWF regionalism. The author’s thesis is that the distinctive narratives within which SWFs are conceptualized produce forms of regionalization that provide a powerful tool for structuring analysis of differences among national SWF models. In particular, the ‘regional’ categories discernible through the distinctive lenses of the narratives produce clearly distinctive ‘regions’ of SWFs, grounded on the logic of the narrative rather than on the geographic home of the SWF. Section 2 considers the logic of each of the narratives. Section 3 then considers regionalization under each of these narratives, with a focus on the connection between geographic and narrative regionalism.
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“Transparency and Business in International Law,” in Transparency in International Law 477-501(Anne Peters and Andrea Bianchi, eds., Cambridge: Cambridge University Press, 2013). ISBN 978-1-107-02138-9.
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Abstract: This essay considers transparency and business in international law as a matter of the dynamic tension between norm and technique in the management of systems and the masses of the population they serve. It is divided into two parts. After this Introduction, Part II critically examines transparency in international and transnational regulatory and governance regimes. It considers both hard and soft law frameworks. Section II. A considers public sources of transparency regulation, concentrating on two: the OECD framework and the recently endorsed Guiding Principles of Business and Human Rights. Sections II.B through II.D examine transparency and governance beyond the state, considering (i) hybrid governance efforts represented by the ISO and Global Compact systems (Section II.B), (ii) private third party non-corporate governance regimes represented by the GRI and third-party certification programs (Section II.C), and (iii) private corporate governance transparency regimes (Section II.D). Part III then examines transparency in action. Part III.A explores environmental disclosure by BP before and after the Deepwater Horizon explosion and oil spill of 2010. Section III.B examines Apple, Inc.’s transparency efforts in the context of managing the labor issues of its supply chains. Section III.C critically examines transparency as regulation and action within the framework developed in this Introduction, focusing particularly on the way in which the characteristics of transparency as norm, technique and property fundamentally shape both its character and the parameters within which reform is possible.
Keywords: multinational corporations, private international law, corporate social responsibility, transparency, ISO26000, GRI, Global Compact, Ruggie Framework, Global Compact, Apple, Inc, British Petroleum
JEL Classification: K22, L14, P45
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Larry Catá Backer, “Governance Without Government: An Overview,” in Beyond Territoriality: Transnational Legal Authority in an Age of Globalization 87-123 (Günther Handl, Joachim Zekoll, Peer Zumbansen, editors, Leiden, Netherlands & Boston, MA: Martinus Nijhoff, 2012). ISBN 978-90-04-18647-7; ISSN 1877-4822
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ABSTRACT:This chapter examines the outer limits of extra-territoriality, of governance beyond the state. It suggests the contours of the projection of governance power from outside the territory of states, the possibility of governance without government, and the more radical notion that government itself can exist without the state, projecting its governance into states. The chapter posits that the organization of governance does not require a territory from which to project governance power beyond territorial boundaries. My thesis is that globalisation has made it possible to develop governance spaces outside of both states and public international organisations. Within these spaces, governance communities can produce their own constitutions, thereby exiting autonomously from the government of the state, international organizations, and their public law frameworks, albeit in communication with them. These spaces and that communication define a distinct form of extra-territoriality. The normative framework changes from one centred on the management, the legitimacy and the mechanics of projecting governance power by a state into the territory of another, or of resisting that projection, to one centered on a framework for the infiltration of governance power from non territorially-based governments into the territory of states and their government. In other words, for example, one moves from a discussion of the legitimacy or foundations of the authority of the United States to impose its legislation over chemicals in consumer products to Chinese manufacturers, to one in which the legitimacy and foundations of the authority of the global corporation Wal-Mart to impose its own stanbdards over the same regulatory subject (by determining the content of the products that it will order and sell) on both the United States and China moves to centre-stage.
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Globalization and the Socialist Multinational: Cuba at the Intersection of Business and Human Rights, in Handbook on Contemporary Cuba: Economy, Civil Society, and Globalization 287-299 (Mauricio A. Font and Carlos Riobó, eds., New York: CUNY/Paradigm Press, forthcoming 2013). ISBN 978-1-61205-225-0 (hardcover); 978-1-61205-226-7 (library e-book).
共產黨與中國式的憲政體制— 一黨專政下的憲政發展理論，in 百年宪政与中国宪政的未来 (百年憲政與中國憲政的未來)（Communist Party and Chinese-style constitutional system – the one-party dictatorship under the theory of constitutional development), in Constitutionalism in China in the Last 100 Years and Its Future (in Chinese)), (第九章 –Chapter 9) (LIN Feng, ed., 香港城市大学出版社 (Hong Kong: City University of Hong Kong Press, 2011) (ISBN 978-962-937-177-7).
Inter-Systemic Harmonization and Its Challenges for the Legal-State, in The Law of the Future and the Future of the Law 427-437 (Editors: Sam Muller, Stavros Zouridis, Morly Frishman and Laura Kistemaker; Oslo: Torkel Opsahl Academic EPublisher, 2011) (FICHL Publication Series No. 11 (2011)) (ISBN 978-82-93081-27-2). Available at http://www.fichl.org/fileadmin/fichl/documents/FICHL_11_Web.pdf.
From Colonies to Collective: ALBA, Latin American Integration, and the Construction of Regional Political Power, Routledge Handbook on Diplomacy and Statecraft 325-337 (B.J.C. McKercher, ed., London: Taylor & Francis/Routledge, 2012) (ISBN 978-0-415-78110-7).
The Church of the Lukumi Babalu Aye: The Ironic Story of Santeria in the United States, in Law and Religion: in Law And Religion: Cases in Context 127-149 (Leslie Griffin, et al., eds., Aspen Press, 2010). ISBN13: 9780735578197.
Internationalizing the American Law School Curriculum (in Light of the Carnegie Foundation’s Report), in The Internationalization of Law and Legal Education 49-112 (Jan Klabbers and Mortimer Sellers, Dordrecht, The Netherlands: Springer Science + Business Media B.V., 2008) (2 Ius Gentium: Comparative Perspectives on Law and Justice (Mortimer Sellers series ed.) ISBN 978-4020-9493-4; e-ISBN 978-1-4020-9494-1.
The Mechanics of Perfection: Philosophy, Theology and the Foundations of American Law, in On Philosophy in American Law 44-52 (Francis J. Mootz, Jr., ed., Cambridge: Cambridge University Press, 2009). ISBN-13: 9780521883689.
There Can be Only One: Law, Religion, Grammar and The Organization of Society in the United States in Law and Religion: A Critical Reader 425-463 (Stephen M. Feldman, ed., 2000). ISBN-10: 0814726798 ; ISBN-13: 978-0814726792.
Queering Theory: An Essay on the Conceit of Revolution in Law, in Legal Queeries: Lesbian, Gay and Transgender Legal Studies 185-203 (Leslie J. Moran, et al. eds., London: Cassell, 1998) (ISBN 978-0304338641).