Unpacking Accountability: The Multinational Enterprise, the State, and the International

CommunityLarry Catá Backer

W. Richard and Mary Eshelman Faculty Scholar Professor of Law and International Affairs

Pennsylvania State University

__________

Ucall Conference 2017:

Accountability and International Business Operations: Providing Justice for Corporate Violations of Human

Rights, Labor and Environmental Standards

Why Unpack Accountability• Effective imposition of accounting regimes requires a more nuanced understanding of

the structures of the character and ecologies of accounting

• What is the behavior core of accountability• An act: Answering to, explaining of in relation to an expectation • For what: functionally segmented • Manifested as: for conduct, norms, methods, consequences• To whom: oneself to others, • To what end: to make right, to discipline behavior to ensure order

• The Act is Relational• One brings to account• One is brought to account• One brings oneself to account

• The scope (the “for what”) is functionally constrained• for Corporate Violations of Human Rights, Labor and Environmental Standards

• The breadth and form of conduct (accountable manifestations) • Determined by context• Embedded in formal institutional structures of state and society

• The Beneficiaries of accountability (“to whom”)• Changes character of accounting (act, for what, manifestation)

The Terrains of Accountability

• Thesis: • In a working system of accountability Corporate Violations of

Human Rights, Labor and Environmental Standards all stakeholders in the system must (1) bring each other to account, (2) be brought to account and (3) bring oneself to account

• Subjects (who accounts; who is accountable)• States• Enterprises• International Organizations• Civil Society/NGOs

• Objects of Accountability (why account)• Objectives

• Norm generation• Good governance• Institutional legitimacy• Remedial Mechanisms

• Methods• Institutional and formal• Informal

• Sources• law• norms

Objectives: Norm Generation• Standards

• Human Rights,• Labor and • Environmental Standards

• Applied to Corporations

• Applied through states

• Applied by or with non-state actors (NGOs, and IOs).

• Situated in• Core public law principles of government• Core principles of social organization

• But also • Applied to States through other actors situated in law and politics• Applied to NGOs and IOs through other actors, etc.

• Is this where we talk about Justice? Social Justice?

Objectives: Good Governance

• Corruption

• Monitoring

• Reporting

• Technical proficiency

• Coherence

• Transparency (as a principle)• Informational

• Who decides what is harvested

• Who decides what is disclosed

• Engagement• Timing of consultation

• Weight given

Objectives: Institutional Legitimacy

• Transparency as a legitimacy enhancing technique• Democratic accountability

• Engagement and transparency

• Monitoring and reporting

• Non-state actors• Stakeholder participation and

• authority over institutional actors

• Legitimacy in context• Input

• Sources of action, norms rules embraced by each of the actors; formation of policies or principles on which action will be based.

• Throughput• Engagement in crafting structures forms of response (norm, rule, process, action, etc.)

• Output• Effectiveness in operation

Objectives: Remediation

• Provide remedial mechanisms for external breaches

• Provide remedial mechanisms for internal breaches

• The problem of layering• Internal accountability and external

accountability resonating around each others• Multiple remediation regimes simultaneously

applied• The value of remedy may be incompatible across

actors situated in various places in accountability continuum—states, enterprises NGOs, IOs etc.

• Whose remedy? • The remedy provider• The Remedy Recipient• Are they talking to each other?• The problems of arrogance and privilege

Methods

• Institutional and formal• Judicial authority of domestic legal orders• arbitration

• Informal and non binding• Mediation• OECD NCP• Enterprise based

• Hybrid• Ad hoc• Indigenous; traditional• Specialized transnational Courts (FIFA?)

• Coherence• Jurisdiction• Substantive clash of norms• Enforceability within and across systems

Sources

• Against what is accountability to be had• State law (Which ones?)

• Coherence issue within legal or regulatory orders

• Administrative regulation

• International law

• International norms

• Enterprise rules

• Supplier codes

• Rules devolved from state transparency obligations

• Third Party standards (Equator Principles?)

• Are all sources created equal?• Depends on the context and venue where accountability to be sorted out.

• Legal hierarchies • may be contingent depending on territory and site of accountability

Who Accounts: The State• Bringing the State to Account

• Basis: • International obligations• Constitutional traditions• Effective Implementation

• As embedded in law

• As implemented through government

• Form: as state, SWFs, SOEs

• The State as an Agent of Accounting• Basis: • Scope: Who is subject• Remedial mechanisms

• How should the state brings itself to account• Democratic accountability; political actions• Formal legal actions• International politics

Who Accounts: Enterprises

• Bringing the enterprise to account• Public bodies: States

• International organizations: ?

• Private Bodies: 3rd Party certification?

• The enterprise as an agent of accounting• Supply Chain

• Sectoral control: banking and finance

• Upstream; downstream

• Disciplining the state? International bodies? NGO?

• How should the enterprise bring itself to account• Internal controls

• Internal remediation

Who Accounts: International Organizations

• Bringing the IO to account• A vast emptiness

• The enterprise as an agent of accounting• Technical assistance

• Monitoring

• Ranking

• How should the enterprise bring itself to account• Applying accountability principles to internal

operations and external activities

Who Accounts: Civil Society

• Bringing civil society to account• No free pass on accountability• States have now moved decisively into the field

• Domestic NGOs• Foreign NGOs

• The enterprise as an agent of accounting• Monitoring• Norm developing• Agent in remediation (judicial and non judicial)

• How should the enterprise bring itself to account• Internal monitoring• Transparency• Stakeholder engagement• Connection between civil society and populations

represented• Theory, politics, and obligation.

Where does that leave the Project of Accountability?

• Accountability is situated within its own complex ecology

• At the institutional level it involves obligations to • Be accountable to others• Demand accountability• Be accountable to oneself

• Accountability itself touches on all aspects of institutional operations• Norms• Implementation• Behaviors• Duties and responsibilities

Thanks!

• Accountability for Corporate Violations of Human Rights, Labor and Environmental Standards, then, • must be understood a shorthand for a set of

multiple reciprocal relations

• The legitimacy of which is grounded on the vitality of structures of self accountability and fidelity to internal organization and governance

• Is grounded in the accountability of states and non governmental institutions for the appropriate framework for human rights, labor and environmental governance standards

• Is legitimated in relation to and embedded within the accountable behaviors of states, non-governmental and international organizations