Governance Polycentrism -- Hierarchy and Order Without Government in Business and Human Rights Regulation

Globalization has produced a growing number of governance regimes beyond the reach of the domestic legal orders of states. These systems sometimes collide when their overlapping areas of competence lead to contradictory decisions or mutual obstruction. Is it possible to manage these collisions to produce order among colliding systems with no normative center, and if so, what may be the role of law for the solution of collision problems, and how does that role relate to non-legal regimes, what may be the role of non-legal approaches to a solution, and how do they relate to law, and what might concrete solutions look like? The purpose of this essay is to consider the issue of collision within one of its most interesting nexus points — in the elaboration of governance frameworks touching on the human rights impacts of economic activity by states, enterprises and individuals. That elaboration produces collisions between the state, international public and private organizations (enterprises and civil society actors), each with their distinct governance regimes. The thesis is that the development of governance regimes for the human rights impacts of economic activity suggests the way in which non-legal approaches play a crucial role in the creation of structures within which the collisions of polycentric governance, its necessary anarchic character, can be managed (but not ordered), and consequently the way in which law (and its principles of hierarchy and unitary systemicity) plays a less hegemonic role, that is, the way in which law has less to contribute toward the governance problem thus posed. The thesis is explored by considering the way in which the management of anarchy and the collision of governance regimes are being attempted through the operationalization of the United Nations Guiding Principles for Business and Human Rights, 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), and its incorporation into the Organization for Economic Cooperation and Development Guidelines for Multinational Enterprises. Part I considers the structures and premises of the emerging governance framework built into the Guiding Principles, and its points of collision with law based systems. Part II then considers the ramifications of collision, and the possibilities for systemic equilibrium. The emerging framework suggests a constitutional framework within which fracture and polycentric co-existence, of short duration, appear to be emerging as the stable state.